Luster v. Luster

128 Conn.App. 259

17 A.3d 1068

Gloria LUSTER

v.Donald R. LUSTER, et al.

No. 31907.

Appellate Court of Connecticut.

Argued Jan. 11, 2011.Decided April 26, 2011.

Joseph A. Hourihan, Hartford, and Teresa Capalbo, for the appellants (defendants).Joel A. DeFelice and I. David Marder, Vernon, for the appellee (plaintiff).DiPENTIMA, C.J., and BEAR and BORDEN, Js.BEAR, J.

In this issue of first impression, we are called on to determine whether the involuntary conservators of a conserved person can respond to an action for legal separation filed against the conserved person by filing an answer and cross complaint seeking a dissolution of marriage on behalf of the conserved person.¹ We answer that question in the affirmative and, therefore, reverse the judgment of the trial court dismissing this cross complaint.

Gloria Luster, the plaintiff, and Donald R. Luster, the defendant, ² were married on October 5, 1963. They had two daughters born of the marriage, who are now known as Jeannine Childree and Jennifer Dearborn. At some point prior to 2009, the defendant began to suffer from senile dementia. In early 2009, Childree and Dearborn brought a proceeding in the Probate Court for the district of Tolland for involuntary representation of the defendant. On February 18, 2009, the Probate Court appointed Childree as temporary conservator of the person and Dearborn as temporary conservator of the estate of the defendant.³ Dearborn was given the following powers: “(1) Manage the estate, (2) Apply estate to support of conserved person, (3) Pay debts, and (4) Collect debts due.” ⁴ Childree was given the following powers: “(1) General custody of [the] conserved person, (2) Establish residence, (3) Consent to medical or other professional care, counsel treatment or service, and (4) Provide for care, comfort, maintenance, take reasonable care of personal effects.” ⁵

On February 26, 2009, the plaintiff initiated suit against the defendant, who is described in the caption of her complaint as incompetent, and against Childree as conservator of his person and against Dearborn as conservator of his estate. The plaintiff alleged, inter alia, that “[s]ince October 5, 1963, irreconcilable differences have occurred between the parties which [have] caused the marriage to [break down] irretrievably and there is no hope of reconciliation.” ⁶ The plaintiff's claims for relief included: “1. A legal separation of the marriage. 2. Alimony, pendente lite. 3. Alimony. 4. Transfer of [the] [d]efendant's interest in real estate. 5. Equitable division of property.”

Also on February 26, 2009, the plaintiff filed motions for alimony pendente lite, for possession of the jointly owned premises, for payment of the family bills, and for exclusive use of the couple's motor vehicle. On March 16, 2009, the defendants filed an answer to the complaint in which they admitted paragraphs one through seven of the complaint and made the following claims for relief: “1. Alimony Pendente Lite; 2. Alimony; 3. Attorney's Fees Pendente Lite; 4. Attorney's Fees; 5. Transfer of [the] plaintiff's interest in real estate; 6. Equitable division of property; and 7. Anything else the court deems fair.”

On March 17, 2009, the Probate Court found that the defendant suffered from senile dementia and was incapable of caring for himself, and it made permanent its prior temporary appointments of Dearborn and Childree. On April 1, 2009, the defendants filed a cross complaint on the official divorce complaint form (dissolution of marriage) containing allegations previously set forth in the plaintiff's complaint, which allegations the defendants had admitted in their answer. See Practice Book § 25–9.⁷ If the defendants did not have pending such a cross complaint, the plaintiff could at any time without the permission of the court withdraw her complaint, thus bringing the case to a close.⁸ On May 27, 2009, the court denied the plaintiff's and the defendant's motions for alimony pendente lite.

On October 30, 2009, the plaintiff filed a motion to dismiss the defendants' cross complaint “because the involuntary conservators of the [d]efendant's person and estate, cannot as a matter of law, bring a divorce action on behalf of their incompetent father ... against their mother....”

On November 10, 2009, the defendants requested permission for leave to amend their cross complaint to add a claim of intolerable cruelty by the plaintiff. On November 12, 2009, the plaintiff objected to the request to amend on the basis set forth in her motion to dismiss, namely, lack of authority by the conservators to “bring a divorce action on behalf of their incompetent father.” On November 20, 2009, the defendants filed their objection to the plaintiff's motion to dismiss “because a Conservator has a right to bring a dissolution action on behalf of her Conserved Person when acting in the best interests of her Conserved Person ...” noting that “the [p]laintiff has already factually stated that the marriage ... has broken down [irretrievably] and there is no hope of reconciliation.”

On January 7, 2010, the court granted the plaintiff's motion to dismiss the defendants' cross complaint. It concluded that “the conservators of the defendant cannot bring a cross complaint in this case....” ⁹ On January 26, 2010, the defendants appealed from the judgment of the court dismissing the cross complaint.

We note the principles that guide us in our review of this appeal. “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.” (Emphasis in original; internal quotation marks omitted.) LaBow v. LaBow, 85 Conn.App. 746, 752, 858 A.2d 882 (2004), cert. denied, 273 Conn. 906, 868 A.2d 747 (2005). “[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.) May v. Coffey, 291 Conn. 106, 113, 967 A.2d 495 (2009). “If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause.” (Internal quotation marks omitted.) Carrubba v. Moskowitz, 274 Conn. 533, 550, 877 A.2d 773 (2005). “[A] determination regarding a trial court's subject matter jurisdiction is a question of law, [and therefore] our review is plenary.” (Internal quotation marks omitted.) In re Matthew F., 297 Conn. 673, 688, 4 A.3d 248 (2010).

On appeal, the defendants argue that Connecticut should recognize the right of a conserved person to maintain a dissolution of marriage action through a properly appointed involuntary conservator when such dissolution is in the best interest of the conserved person. They argue that to prohibit a conserved person from dissolving his marriage is not equitable and may deprive the conserved person of his dignity because it gives the competent spouse final control over the marriage to the exclusion of the conserved spouse even when the conserved spouse is facing physical, emotional or financial harm at the hands of the competent spouse. They further argue that there are safeguards in place to guard against involuntary conservators who act improperly in seeking to dissolve the marriage of the conserved person because the involuntary conservators still would have to sustain their burden of proof that the conserved person was entitled to a dissolution of marriage and that such dissolution was in the conserved person's best interest.

The plaintiff, on the other hand, argues that we should not permit an involuntary conservator to maintain a dissolution of marriage action on behalf of a conserved person.¹⁰ She argues that the power of conservators is limited and that there are no statutes in Connecticut that would authorize an involuntary conservator to maintain a dissolution of marriage action on behalf of a conserved person. Furthermore, she argues, public policy concerns would prohibit us from concluding that involuntary conservators have such authority. If we were to agree with the defendants, the plaintiff argues, we would grant “involuntary conservators the power to, literally, bring dissolution of another's marriage for a myriad of reasons including financial gain or personal animosity.” We conclude that the involuntary conservators in this case are not prohibited, as a matter of law, from seeking a dissolution of marriage on behalf of the defendant.

We begin by looking to the statutes that define the duties and authority of those appointed as involuntary conservators. “The process of statutory interpretation involves a reasoned search for the intention of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Jewish Home for the Elderly of Fairfield County, Inc. v. Cantore, 257 Conn. 531, 539, 778 A.2d 93 (2001).

“The statutory duties of a conservator are clearly defined in General Statutes § 45a–655,¹¹ which delineates the duties of a conservator of the estate, and General Statutes § 45a–656,¹² which prescribes the

[17 A.3d 1076 , 128 Conn.App. 268]

duties of a conservator of the person. A conservator of the estate shall manage all the estate and apply so much of the net income thereof, and, if necessary,...