Connery v. Gieske
147 A.3d 94
| Conn. | 2016Background
- Decedent died Dec. 14, 2011; Elizabeth Gieske named executrix; will probated Jan. 5, 2012. Plaintiff (husband) initially waived notice but later filed a June 4, 2012 notice contesting the will and preserving a spousal election.
- Plaintiff filed a second notice Oct. 22, 2012 seeking reimbursement for monies advanced pre-marriage; executor rejected it and plaintiff sought a Probate hearing under §45a-364(a).
- Executor filed motions to require surrender of estate property and disclosure of joint asset information; plaintiff sought protective orders and moved to compel disclosure. Probate hearing set for Mar. 6, 2013.
- Plaintiff filed an affidavit under §45a-98a(a) seeking removal to Superior Court for jury trial; Probate Court on Mar. 6, 2013 ruled only the surrender/disclosure motions were removable and retained jurisdiction over other matters. Written orders were not mailed until Sept. 27, 2015.
- Plaintiff filed a Superior Court complaint Apr. 15, 2013 challenging Probate jurisdiction and also attempted to appeal the Mar. 6, 2013 orders; trial court dismissed as untimely under §45a-186(a). Supreme Court affirmed dismissal but on different ground: the complaint/appeal was premature because appeals time runs from mailing of the Probate order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether filing an affidavit under §45a-98a(a) immediately divests Probate Court of jurisdiction and creates a civil action in Superior Court | Connery: affidavit removed matters and Probate court lost jurisdiction; his Superior action properly vindicated that removal right | Gieske: Probate Court retains power to determine its own jurisdiction; removal is limited to matters meeting §45a-98 criteria and subject to Probate determination; relief is by appeal | Held: Probate Court had jurisdiction to determine its own jurisdiction; the proper remedy for challenging that decision is appeal under §45a-186 |
| When the limitations period to appeal a Probate order begins under §45a-186(a) | Connery: 30-day period begins only when the Probate Court mails the written order to parties; until written order mailed, appeal period doesn't run | Gieske: appeal period begins at time of actual notice (e.g., oral ruling) and plaintiff’s Superior filing was untimely | Held: §45a-186(a) is plain — appeal period begins on mailing of the order; here mailing was Sept. 27, 2015, so the April 2013 filing was premature |
| Whether §51-53 (clerk notice) requires measuring appeal time from immediate clerk notice instead of §45a-186 mailing language | Connery: relied on the mailing requirement of §45a-186; contrasted with §51-53 | Gieske: trial court invoked §51-53 and practical notice to start limitations | Held: No conflict — §45a-186 is the specific statute governing probate appeals and controls; §51-53 is more general and does not override mailing requirement |
| Effect of probate rules and statutory amendments (2007, 2011, 2013) on appeal timing and process | Connery: procedural changes support reliance on written orders and mailing rule; later rules require memorializing oral rulings | Gieske: argued timing should not enable indefinite appeals based on delayed mailings | Held: Legislature’s 2007 and 2011 amendments and the plain text of §45a-186 require attaching the written order to the Superior complaint and measure the appeal period from mailing; a premature appeal may be dismissed but plaintiff may file after the order is mailed |
Key Cases Cited
- Heussner v. Hayes, 289 Conn. 795 (2008) (motions to dismiss that attack subject-matter jurisdiction reviewed de novo)
- In re Joshua S., 260 Conn. 182 (2002) (courts of probate are statutory tribunals with only statutory powers)
- Castro v. Viera, 207 Conn. 420 (1988) (a court may determine its own jurisdiction once put in issue)
- Miller v. McNamara, 135 Conn. 489 (1949) (Superior Court lacks power to set aside a Probate decree except on appeal)
- Corneroli v. D’Amico, 116 Conn. App. 59 (2009) (explaining 2007 statutory overhaul: appeals commenced by filing complaint and requirement to attach the Probate order)
- State v. Goggin, 208 Conn. 606 (1988) (the right to appeal from Probate is purely statutory and statutory appellate procedures must be met)