ZULLO v. OCALEWSKI, No. FA 06-4020422S (Apr. 2, 2007)


ALFRED ZULLO, Conservator v. EUGENIIUSZ OCALEWSKI.

2007 Ct. Sup. 4276, 43 CLR 201
No. FA 06-4020422SConnecticut Superior Court Judicial District of New Haven at New Haven
April 2, 2007

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ON DEFENDANT’S MOTION TO DISMISS (#105)
STEPHEN F. FRAZZINI, JUDGE.

The defendant has moved to dismiss this action brought by the conservator of the person and estate of Anna Sorensen for annulment of her marriage to the defendant. The defendant’s motion claims that a conservator is not authorized by law to bring such an action on behalf of a ward. The parties appeared at family short calendar for argument on this motion on February 23, 2007, at which time neither party offered any evidence. The court also granted in part a motion by defendant to strike portions of the affidavit attached to plaintiff’s objection to the motion to dismiss. For the reasons set forth below, the motion is denied.The defendant’s claim is essentially one of standing, a concept of standing that serves to determine which cases courts may hear:

Standing is . . . a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury [that the complainant] has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy.

(Internal quotation marks omitted.) Connecticut Associated Builders Contractors v. Hartford, 251 Conn. 169, 178, 740 A.2d 813 (1999). “Where a plaintiff lacks standing to sue, the court is without subject CT Page 4277 matter jurisdiction.” Steeneek v. University of Bridgeport, 235 Conn. 572, 580, 668 A.2d 688 (1995). Subject matter jurisdiction is the power of a court to hear and determine the cause of action presented to it. Zizka v. Water Pollution Control Authority, 195 Conn. 682 (1985).

A motion to dismiss is the proper method to raise lack of subject matter jurisdiction in a family matter. LaBow v. LaBow, 171 Conn. 433, 436-37 (1976). “[I]n ruling upon whether a complaint survives a motion to dismiss, 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.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410-11, 722 A.2d 271 (1999). “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.” (Citation omitted; internal quotation marks omitted.) Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988); Shay v. Rossi, 253 Conn. 134, 140, 749 A.2d 1147 (2000).

The undisputed facts presented by the complaint and the affidavit filed by the plaintiff in opposition to the motion to dismiss establish certain essential facts relevant to the present motion. Anna Sorensen is a 94-year-old woman who married the defendant, a 60-year-old man who had lived in her home for 12 years, in a civil ceremony on February 2, 2006. On February 15, 2006, the elderly protective services unit of the State Department of Social Services filed an application for appointment of an involuntary conservator for Ms. Sorensen in the East Haven Probate Court, which thereafter scheduled a hearing on the matter for March 1, 2006. On that date, Attorney Ralph Zullo was appointed as Sorensen’s temporary conservator and Paul E. Whitaker was appointed her guardian ad litem (GAL). The GAL filed a report with the probate court on March 10 of certain actions he had taken since March 1, and after further hearing on March 10 the court granted the state’s application and appointed Zullo as Sorensen’s involuntary conservator of the person and estate.

The defendant’s motion argues that this court should apply to an annulment action the rule followed in most American jurisdictions that, absent express statutory authority, a conservator may not bring a dissolution action on behalf of a conserved person. “The policy reasons most often given in support of the majority rule is `the personal nature of the decision to terminate a marriage . . . and the inability to determine with certainty that the [conserved people] would have wanted CT Page 4278 to end the marriage.'” (Citations omitted.) Hurtle v. Hurtle, Docket No. 72 23 89, Superior Court, Judicial District of Hartford (April 18, 2000, Devine, J.) [27 Conn. L. Rptr. 127]. Yet it appears to this court that the majority of courts do permit a conservator to bring an annulment action the logic that “the element of personal choice necessary to maintain a divorce action has no place in a suit for annulment, because such a proceeding is brought on the assumption that a valid marriage never did exist, so there can be no question as to the incompetent’s possible desire to continue it.” Annotation, 6 A.L.R.3d. 681, “Power of incompetent spouse’s guardian, committee, or next friend to sue for granting or vacation of divorce or annulment of marriage, or to make a compromise or settlement in such suit, § 2 (1966). Thus, in Cox v. Armstrong, 122 Colo. 227, 231, 221 P.2d 371 (1950), the court stated that:

Under the majority rule, the conservator of an incompetent person may not bring a suit for divorce, but may bring a suit for annulment on the ground of insanity. The distinction is obvious. A divorce recognizes the validity of the marriage and requires a voluntary decision thereafter to terminate it. Such decision an incompetent person cannot make. An action for annulment is based, not on the voluntary decision of the plaintiff to dissolve the marriage, but on the fact of his lack of capacity to consummate it.

Although that authority is somewhat dated, the more recent article in Annot., 32 A.L.R.5th 688-703, Power of Incompetent Spouse’s Guardian or Representative to Sue for Granting or Vacation of Divorce (1995), shows no change among the courts on this issue. Those few cases holding that a conservator may not bring an action to annul the marriage have been in states, unlike Connecticut, where a statute expressly authorized the incapable person to bring the action. See, e.g., Hall v Nelson, 41 Ohio App. 3d 138, 534 NE2d 929 (1987); Pence v. Aughe, 101 Ind. 317 (Ind. 1885).

Permitting a conservator to bring an annulment action on behalf of its ward would be consistent, moreover, with the general flexibility that Connecticut courts have shown to protect the legal rights of “incapable persons,” the term our Supreme Court now uses to refer to people for whom a guardian or conservator has been appointed. See Lesnewski v. Redvers, 276 Conn. 526, 532 n. 8, 886 A.2d 1207 (2005). Thus, i Cottrell v. Connecticut Bank Trust Co., 175 Conn. 257, 265, CT Page 4279 398 A.2d 307 (1978), while acknowledging the common-law rule an individual who has been adjudicated incapable cannot initiate a suit or bring an appeal on her own behalf, held that where “those appointed to protect the interest of an [incapable person] fail to appeal from a decision in which the [incapable person] has a real interest, an action may be brought by a next friend in order that a court may review the substantive issues involved.” In Orsi v. Senatore, 230 Conn. 459, 467, 645 A.2d 986 (1994), the court permitted a minor to bring an action by next friend, despite the existence of guardian, when “the guardian is absent, or is unwilling or unable to institute or prosecute the required action or appeal, and especially when, though declining to take such action himself, he does not forbid such proceeding, or when he is disqualified by interest hostile to that of the infant, or is for other reasons an improper or unsuitable person to prosecute such actions on behalf of the ward.” (Internal quotation marks omitted.) In Newman v. Newman, 235 Conn. 82, 663 A.2d 980 (1995), the court concluded that “the general rule requiring that minor children may appeal only through a guardian or next friend” should give way to a right of appeal in the minor children without the necessity of an appointment of a guardian ad litem or the naming of a next friend when necessary to protect the children’s best interests. Finally, in Lesnewski v. Redvers, the court held that an incapable person with a court-appointed conservator could file an appeal of a probate court decision in her own name with approval of the trial court. The court found an “implicit recognition” in the relevant statutory scheme “that the plaintiff’s attorney may be an appropriate person to protect her interests.” 276 Conn. 538. As in the other cases discussed here, the court took a pragmatic look at whether “requiring the appointment of a guardian ad litem or naming of a next friend to bring an appeal when the attorney could properly serve that role would exalt form over substance, . . .” Id., 539. It concluded that “the adoption of Newman’s best interests test is equally appropriate in the context of a conserved person because, as we previously have stated herein, there is no difference in the court’s duty to safeguard the interests of a minor and the interests of a conserved person.” Id., 540.

Since a spouse has a claim to an equitable division of the marital estate, a valid marriage between Sorensen and Ocalewski would subject her estate to claims by the defendant, possible judicial award to him, and a spousal share of the estate in probate; and her spousal duty of support would subject her estate to possible orders of support. Permitting this action would permit the conservator to exercise his statutory duties to protect his ward’s estate and to use income from that estate to support the ward and “those members of the ward’s family whom he or she had the legal duty to support.” General Statutes § CT Page 4280 45a-655(a). Accordingly, the motion to dismiss is denied,

In Hurtle v. Hurtle, the court permitted a voluntary conservator to file a dissolution of marriage action on behalf of her ward, but also ordered that the conservators be added as plaintiffs. This court finds that an analogous order would be appropriate here and orders, pursuant to General Statutes § 52-109 and Practice Book Section 9-20, that the incapable person Anna Sorensen, as the real party in interest here but not permitted to bring an action on her own, be added as lead party plaintiff and that the current plaintiff Alfred Zullo, Conservator be re-designated as maintaining this action as Sorensen’s next friend. The caption of the action shall be amended to show that Alfred Zullo, Conservator brings this action in a representation capacity on behalf of his ward. The matter shall henceforth be known as “Anna Sorensen, PPA Alfred Zullo Conservator v. Eugeniiusz Ocalewski.”

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