Opinion
HHBCV166032449S
12-23-2016
Margaret Kubanek v. Ewa M. Star
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE STANDING
Robert E. Young, J.
In her complaint dated February 23, 2016, the plaintiff Margaret Kubanek seeks a declaratory judgment pursuant to Practice Book § 17-54 that the marriage between the defendant Ewa Star and the decedent George Star a/k/a Jerzy Starnowski is void because of consanguinity. The following facts are alleged in the plaintiff's pleadings. The plaintiff is the daughter of the decedent and his first wife, Elzbieta Starnowska. The marriage between George Star and Starnowska ended on September 16, 1971. On May 14, 1994, the defendant and George Star married. George Star died on May 25, 2015. The defendant's mother is Jadwiga Stamowska Bialecka. Bialecka is George Star's sister, thus George Star is the defendant's uncle and husband.
The gravamen of the dispute is whether Jadwiga Bialecka is the biological sister of George Star, or as the defendant contends, a non-biological sister born from different parents who was subsequently adopted by George Star's parents. If the defendant's contention is true, the defendant is not consanguineously related to the decedent. The complaint alleges that, if the defendant's marriage is lawful and the decedent died intestate, the defendant would be entitled to one-half of the estate and the plaintiff would share in the other half. However, if the marriage is void, then the plaintiff would share in the decedent's entire estate rather than just one-half.
On August 22, 2016, the court (Abrams, J.) denied the defendant's motion to dismiss for lack of subject matter jurisdiction based on ripeness and justiciability. (107.01.) On May 2, 2016, the plaintiff filed a motion for summary judgment and supporting memorandum of law. (102.00.) The defendant filed an objection to the plaintiff's motion (113.00) and her own motion for summary judgment (114.00) on August 23, 2016. The plaintiff filed an amended memorandum in opposition to the defendant's motion for summary judgment on November 4, 2016. (121.00.) The defendant filed a supplemental memorandum on November 16, 2016. (122.00.) Both parties have submitted certified affidavits, documents and translations, some of which are uncertified, in support of their memoranda.
In preparation for oral argument on the motions for summary judgment, this court reviewed the pleadings and exhibits. These pleadings raised a concern as to the standing of the plaintiff to seek a declaratory judgment of the court. The lack of standing would deprive this court of subject matter jurisdiction. The basis of the concern was distinct from the bases of the above-mentioned motion to dismiss which was denied by Judge Abrams. This court questioned whether a potential third-party beneficiary has standing to bring an action pursuant to General Statutes § 46b-21. Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413, 35 A.3d 188 (2012). " Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." (Internal quotation marks omitted.) Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501, 467 A.2d 674 (1983). " The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings . . ." (Internal quotation marks omitted.) Keller v. Beckenstein, 305 Conn. 523, 531-32, 46 A.3d 102 (2012). " [A] subject matter jurisdictional defect may not be waived . . . [or jurisdiction] conferred by the parties, explicitly or implicitly . . . [T]he question of subject matter jurisdiction . . . once raised, either by a party or by the court itself . . . must be answered before the court may decide the case." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007). " Any party, or the court itself, can raise the issue of subject matter jurisdiction at any time. It matters not how or by whom the question of jurisdiction is raised . . . Because subject matter jurisdiction cannot be conferred by waiver or consent . . . the court must address the question, suo motu if necessary, even in the absence of a motion." (Citations omitted.) Manning v. Feltman, 149 Conn.App. 224, 236, 91 A.3d 466 (2014).
Therefore, prior to proceeding to hearing the motions for summary judgment on the merits, this court held a hearing on December 5, 2016 to address the issue of standing raised sua sponte by the court. For the following reasons, the court has determined that the plaintiff has standing to pursue the declaratory judgment, thereby affording the court subject matter jurisdiction to adjudicate this action.
" It is the well-established law of this state that no marriage performed in this state is to be held void or voidable except for some ground recognized at common law or for some ground which a statute expressly provides shall be ground for annulment." Manning v. Manning, 16 Conn.Supp. 461, 461-62 (1950). General Statutes § 46b-42 provides that " [t]he Superior Court shall have exclusive jurisdiction of all complaints seeking a decree of annulment, dissolution of a marriage or legal separation." General Statutes § 46b-40 states in relevant part: " (a) A marriage is dissolved only by (1) the death of one of the parties, or (2) a decree of annulment or dissolution of the marriage by a court of competent jurisdiction. (b) An annulment shall be granted if the marriage is void or voidable under the laws of this state or of the state in which the marriage was performed."
The plaintiff alleges that the defendant is the decedent's niece, thus the marriage is void by consanguinity. General Statutes § 46b-21 states: " No person may marry such person's parent, grandparent, child, grandchild, sibling, parent's sibling, sibling's child, stepparent or stepchild. Any marriage within these degrees is void." Accordingly, as a general matter, the court has exclusive jurisdiction in a complaint seeking annulment of a marriage because it is void or voidable.
" Where the marriage sought to be annulled is voidable, as distinguished from being 'void, ' it is generally agreed that the marriage status does persist unless and until a decree of annulment is rendered." Perlstein v. Perlstein, 152 Conn. 152, 156 n.2, 204 A.2d 909 (1964). An annulment proceeds upon the theory that the marriage is void ab initio; a judgment of annulment contributes nothing to its invalidity but a record that it is invalid. Mazzei v. Cantales, 142 Conn. 173, 178, 112 A.2d 205 (1955). " A void marriage is one which is invalid from the start; a voidable marriage is valid until judicially declared a nullity . . . A voidable marriage is legal, but one which public policy dictates should be judicially declared invalid." (Citations omitted.) Dunlap v. Current, Superior Court, judicial district of New London at Norwich, Docket No. FA-13-4122263 (March 27, 2014, Goodrow, J.) (57 Conn.L.Rptr. 783, 784, ). See also A. Rutkin, S. Oldham & K. Hogan, 7 Connecticut Practice Series: Family Law (3d Ed. 2010) § 12:1, p. 132 (" A void marriage is one which is an absolute nullity from the outset without regard to whether it is ever attacked in a judicial proceeding. In such a case, an annulment judicially recognizes that there never was a valid marriage. By contrast, a marriage which is merely 'voidable' is presumed valid unless and until a decree annulling the marriage is entered" [footnote omitted]).
By operation of § 46b-40, the marriage between George Star and the defendant dissolved upon the death of George Star. Although the court has exclusive jurisdiction in complaints seeking annulment of a void marriage, the marriage in question was dissolved before the initiation of the present complaint. See, e.g., Aksomitas v. Aksomitas, Superior Court, judicial district of Hartford, Docket No. FA-08-4034768-S (November 16, 2009, Frazzini, J.) (48 Conn.L.Rptr. 750, 751, ) (" under both common and statutory law, the plaintiff's death dissolved the marriage between the parties"); Kissel v. Kissel, Superior Court, judicial district of Stamford-Norwalk, Docket No. FA-05-4003907-S, (November 8, 2006, Tierney, J.) (" [t]he legal effect of [defendant's] death . . . in accordance with General Statutes § 46b-40, is to dissolve the marriage"); see also Misheff v. Misheff, Superior Court, judicial district of Stamford-Norwalk, Docket No. FA94-0139817, (December 12, 1995, Harrigan, J.) (" upon the death of the plaintiff the action abated because, in accordance with General Statutes § 46b-40(a)(1), a marriage is dissolved by the death of one of the parties").
The return of service is dated February 23, 2016. According to the death certificate filed by the defendant, George Star died on May 25, 2015.
In Manndorff v. Dax, 13 Conn.App. 282, 535 A.2d 1324 (1988), the plaintiff brought an action seeking judicial declaration that the marriage between the defendant and the plaintiff's deceased husband was invalid because the divorce between the plaintiff and her deceased husband was invalid. The trial court dismissed the case for lack of jurisdiction because neither party was a domiciled in Connecticut, a requirement in an annulment action. The Appellate Court found error and remanded the case, finding that the court has jurisdiction because the plaintiff seeks a declaratory judgment. " [T]he present action, unlike an annulment action, does not ask the court to act upon or affect either party's marital status with respect to the husband; the plaintiff does not, and cannot, seek to have the defendant's marriage to the husband invalidated. Rather than seeking a change in the status of the defendant's marriage to the husband, the plaintiff seeks a declaration of the invalidity of that marriage when it was contracted and as it may have existed in the past as a basis for determining the status of the parties upon his death. As such, the present action is more properly viewed as a declaratory judgment action. This conclusion is buttressed by the general proposition that a stranger to a marriage may not maintain or intervene in an action affecting marital status . . . Although interested in the defendant's marriage to the husband, the plaintiff, as a nonparty to that marriage, had no right to maintain an action for its annulment . . . Where the invalidity of a marriage is the subject of a claim for relief by a nonparty to the marriage, an action seeking a declaration of the invalidity of the marriage pursuant to General Statutes § 52-29 is precisely the kind of 'separate action' contemplated by Livsey [ v. Livsey, 11 Conn.App. 43, 525 A.2d 546 (1987), overruled by Gaudio v. Gaudio, 23 Conn.App. 287, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990)]." (Citations omitted.) Id., 286-87.
Contrastingly, in Gutkowski v. Gutkowski, Superior Court, judicial district of Hartford, Docket No. FA-96-712571-S (November 4, 1996, Rubinow, J.) (18 Conn.L.Rptr. 101, ), the court granted the defendant's motion to dismiss because the plaintiff failed to establish standing. In Gutkowski, the plaintiffs, daughters of the decedent, sought to annul the marriage between their deceased father and the defendant, claiming that the decedent lacked the mental capability to consent to the marriage. The court noted that " [t]he complaint is void of any allegations that Gutkowski died intestate; that the plaintiffs were Gutkowski's heirs pursuant to a will that was in existence prior to the marriage; that the plaintiffs had or have any interest in the property held by Gutkowski or his estate; that the defendant induced Gutkowski to enter into the marriage with fraudulent intent . . ." at *2. Furthermore, " in the context of this action, where the plaintiffs have alleged no relation to the marriage at issue, and have asserted no interest in marital property, the court is unable to ascertain facts sufficient to consider their claims as a declaratory judgment action." at *13. Concluding that the plaintiffs were strangers in the marriage at issue and without having asserted any interest in the property of the marriage, the court determined that the plaintiffs lacked standing to pursue an action for annulment.
In reviewing these cases, the court finds that the present matter is most analogous to Manndorff . As in Manndorff, the court has subject matter jurisdiction in a declaratory judgment action. Also distinguishable from Gutkowski, in the present matter the plaintiff alleges that she has an interest in a portion of the decedent's estate. Accordingly, as the plaintiff alleges in the complaint that she has a share in the decedent's estate and has an interest " as to her rights or other jural relations, " the plaintiff has standing to seek a declaratory judgment. See generally 4 Am.Jur.2d 583, Annulment of Marriage § 58 (2007) (" [P]arties peculiarly interested in the avoidance of the marriage [void ab initio] have been permitted to bring action for its annulment after the death of the party defrauded or imposed upon" [Footnote omitted]); Fuhr, 65 COA.2d 617, Annul Marriage § 30 (2014), pp. 680-81 (" A void marriage generally can be annulled by either party . . . It can also be declared invalid in an action by an interested third person . . . A competing heir also has standing to seek to have a marriage declared invalid." [Citations omitted.]) Lastly, the court notes that " [i]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2015).
Compare, Manndorff v. Dax, supra, 13 Conn.App. 285-86 (" Although in some contexts the difference between a judgment only declaring the invalidity of a marriage--a declaratory judgment--and a judgment invalidating a marriage--an annulment--may be elusive, under the circumstances presented by this case we conclude that the plaintiff seeks only declaratory relief and cannot be understood to seek a judgment of annulment"), with Gutkowski v. Gutkowski, supra, Superior Court, Docket No. FA-96-712571-S (18 Conn.L.Rptr. 103, ) (" in the context of this action, where the plaintiffs have alleged no relation to the marriage at issue, and have asserted no interest in marital property, the court is unable to ascertain facts sufficient to consider their claims as a declaratory judgment action").
For the foregoing reasons, the court finds that the plaintiff has standing and that the court has subject matter jurisdiction over this dispute. The parties will be afforded oral argument on the merits of the motions for summary judgment on January 9, 2017 at 9:30 a.m.
The emphasis here is that the plaintiff seeks declaratory judgment from the court pursuant to Practice Book § 17-54. This is distinguishable and different from an action seeking an annulment pursuant to General Statutes § 46b-42. See, e.g., Poltz v. Poltz, 15 Conn.Supp. 75, 76 (1946) (" [T]his is not a divorce action. Indeed it is not even an action for annulment. Rather, it is an action for declaratory judgment"); Birmingham v. Stanek, Superior Court, judicial district of New Britain, Docket No. CV-06-4010372-S, (April 12, 2007, Shapiro, J.); accord Hall v. Hall, 9 Conn.Supp. 1 (1940). " An action for declaratory judgment is a special proceeding under General Statutes § 52-29, implemented by Practice Book § § 17-54 and 17-55 . . . It provides a valuable tool by which litigants may resolve uncertainty of legal obligations . . . Our Supreme Court has frequently pointed out that the statutes and rules pertaining to declaratory judgments create an independent remedy and should be accorded a liberal construction . . . Indeed, [o]ur statute, which antedated the Uniform Declaratory Judgments Act, is broader in scope than that act and the statutes in most, if not all, other jurisdictions." (Citations omitted; footnote omitted; internal quotation marks omitted.) ACMAT Corp. v. Greater New York Mutual Ins. Co., 88 Conn.App. 471, 475-76, 869 A.2d 1254, cert. denied, 274 Conn. 903, 876 A.2d 11 (2005).