Opinion
No. CV06-4020211S
September 28, 2007
MEMORANDUM OF DECISION
Maydelle Trambarulo is a 77-year-old women who has been in Connecticut since late August 2004. Despite her relative anonymity to the world, she has become a symbol for some of those who argue that something is terribly "wrong" with the Connecticut Probate Court system. Although Trambarulo came to Connecticut for a brief stay to obtain medical treatment during the summer of 2004, she has not been allowed to leave the state or return to her family in New Jersey since.
When Maydelle Trambarulo came to Connecticut in August 2004, she had lived in Delaware for about one year. Before that she had been a New Jersey resident for almost fifty years. Neither Trambarulo's husband of fifty years, Ralph, nor any of their four adult children is or was a Connecticut resident. Yet, after having been in Connecticut for less than three months, the Woodbridge Probate Court appointed a Permanent Conservator of Maydelle Trambarulo, thereby terminating her and her family's right and ability to make decisions for her. Then, in 2006, after Trambarulo was transported from a nursing facility in Woodbridge to one in Derby, the Derby Probate Court denied the family's various requests for relief.
Trambarulo's family brings this action seeking to overturn and vacate the various orders of the Probate Court — ultimately with the goal of removing Trambarulo from Connecticut. The defendant, Trambarulo's appointed attorney, opposes the efforts, joined by Trambarulo's appointed conservator and guardian ad litem, Robyn Berke.
On November 10, 2004, Woodbridge Probate Judge Horowitz appointed Attorney Mark DellaValle as conservator of Maydelle Trambarulo. And, on June 12, 2006, the Derby Probate Judge Clifford Boyle, denied the families' Motion to Reunite, Motion for Removal of Jurisdiction and Release of Funds.
The plaintiffs, Ralph Trambarulo, Paul Trambarulo, Anne Haines, Margaret Goss and Alice Wright, filed this action as an appeal from the rulings of the Probate Court. According to their allegations and arguments Woodbridge Probate Judge Horowitz improperly appointed a conservator for Trambarulo when she was not a resident or domiciliary of the State of Connecticut; Derby Probate Judge Hoyle improperly concluded that the Probate Courts of Woodbridge and Derby had jurisdiction pursuant to Connecticut General Statutes (C.G.S.), section 45a-648; improperly denied the plaintiff's motion to reunite; incorrectly found that it was in the best interest of the ward to remain in Connecticut; improperly denied the application for an independent geriatric psychiatrist; improperly refused to act upon their application for removal from jurisdiction; and improperly refused to rule, in writing, upon the request to release the husband's one-half of joint accounts.
Originally, an appeal was brought in a case captioned Trambarulo v. Whitaker, CV 06 4019968. Though still listed as a pending case, that action was removed from the trial list and replaced by the instant one in order to correct a technical deficiency.
The court-side trial of this matter took place on July 20, 2007, at which the plaintiffs filed a Memorandum re Jurisdiction, dated July 20, 2007. Following the trial, counsel submitted Post-Trial Briefs: Appellee's Memorandum re: Jurisdiction, dated August 16, 2007; and Reply Memorandum re Jurisdiction, dated August 28, 2007.
This Court issued a preliminary oral ruling on Friday, September 21, 2007, overturning the decisions and orders of the Probate Court (Horowitz, J. and Hoyle, J.). This Memorandum of Decision more fully articulates the court's reasoning.
As noted on the record on September 21, 2007, this court received two letters from three of the plaintiffs during the week of September 17, claiming that their mother, Maydelle Trantarulo was in deteriorating health; had been diagnosed with "end stage Parkinson's disease"; and had been placed in hospice care. Through the clerk, the court notified all counsel of the ex parte communication, forwarded a copy of the letters, and indicated that it would render an oral decision in this case on Friday, September 21, 2007.
Notwithstanding the heated and passionate rhetoric surrounding this case, the facts in this case are generally undisputed. The undisputed facts, are as follows.
1. Maydelle Trambarulo came to Connecticut in August 2004 for the express purpose of receiving medical treatment.
2. Neither Maydelle Trambarulo, nor any of her family, intended her stay in Connecticut to be permanent.
3. Maydelle Trambarulo and her family intended her stay in Connecticut to be between 30-60 days.
4. Maydelle Trambarulo voluntarily traveled to Connecticut with her husband's niece, Teresa Sirico, with the agreement and support of her immediate family.
5. Prior to traveling to Connecticut, Maydelle Trambarulo resided in Delaware.
6. Prior to moving to Delaware, Maydelle Trambarulo resided in New Jersey for almost 50 years.
7. Maydelle Trambarulo is legally married to Ralph Trambarulo, with whom she resided before she traveled to Connecticut.
8. Ralph Trambarulo currently resides in New Jersey.
9. Ralph and Maydelle Trambarulo have four adult children.
10. Anne Haines and Margaret Goss, two of the Trambarulo's children, reside in New Jersey.
11. Alice Wright, one of the Trambarulo's children, resides in Florida.
12. Paul Trambarulo, one of the Trambarulo's children, resided in Delaware, but moved to another state during the pendency of this action.
13. At the time that Maydelle Trambarulo traveled to Connecticut, Paul Trambarulo, her son, resided in Delaware.
14. On the day she arrived in Connecticut, Maydelle Trambarulo was admitted into Harborside Willows of Woodbridge.
15. On September 15, 2004, while she was in Harborside, Teresa Sirico filed an application for the appointment of a Conservator of Trambarulo.
16. The Woodbridge Probate Court, (Horowitz, J.) appointed Mark DellaValle permanent conservator of Maydelle Trambarulo on November 10, 2004.
The True and Attested Copy of the Decree of Appointment found in the file indicates that Mark DellaValle was appointed by Judge Horowitz as a conservator of the person, only. However, Probate Judge Hoyle, all counsel, including the Conservator himself, refer to DellaValle as the Conservator of both the person and estate of Trambarulo. Within both counsel's Proposed Findings of Fact and within the Written Decision of Judge Hoyle, Attorney Mark DellaValle is designated as conservator of both the person and the estate of Trambarulo. "On November 10, 2004 Attorney Mark DellaValle was appointed conservator of the estate and person of Maydelle by the Woodbridge probate court." Appellants' Proposed Findings of Facts, dated August 13, 2007. "On November 10, 2004, an independent party, Attorney Mark DellaValle, was appointed conservator of the estate and person of Maydelle by the Woodbridge Probate Court." Appellee's Proposed Findings of Fact, dated August 16, 2007. "The Honorable Robert H. Horowitz appointed Mark DellaValle conservator of her person and estate on November 10, 2004." Memorandum of Decision, Hon. Clifford D. Hoyle, January 12, 2006. In documents filed within the Probate Court actions, Attorney DellaValle refers to himself as the conservator of the estate and person.
17. Maydelle Trambarulo's only connection to or with Connecticut was her entry into the state seeking medical attention and treatment.
18. Maydelle Trambarulo does not own and never has owned property in Connecticut.
CT Page 16261
19. Maydelle Trambarulo did not bring the bulk of her personal property or estate into Connecticut.
20. At the time the application for the Appointment of a Conservator was made, the residential address for Maydelle Trambarulo was 709 Christopher Drive, Middletown, Delaware.
21. At the time the application for the Appointment of a Conservator was made, Maydelle Trambarulo was physically located in Harborside Willows of Woodbridge, Connecticut.
22. At the time the Probate motions were presented to Derby Probate Judge Hoyle, Maydelle Trambarulo was physically located in Birmingham Health Care Facility, in Derby, Connecticut.
In addition to the undisputed facts, this court also finds the following facts.
1. Teresa Sirico was appointed a temporary representative of Maydelle Trambarulo prior to the permanent appointment of Mark DellaValle as Conservator.
Although there is no copy of the Order appointing Sirico as Temporary Conservator, Ms. Sirico and counsel have made reference to and relied upon this fact.
2. The immediate family of Trambarulo has been actively participatory in the Probate action since they received notice of the application for appointment of a Conservator.
3. The family has actively demonstrated interest inMaydelle Trambarulo and in her care.
4. The estate of Trambarulo contains substantial assets.
While the court has not been provided with direct evidence of the size of the estate, contained within the file are documents from which this court can estimate its size. i.e., there is an "Application to Release Funds", dated October 11, 2005 and filed with the Probate Court, which requests an Order from the Court for Merrill Lynch to equally divide an account containing "under $1,000,000 in it." Further, the Petitioners filed a Request dated May 31, 2006 and filed June 1, 2006 which sought a hearing to determine the joint assets, because "the Ward and her husband hold substantial assets jointly, including Cash."
Woodbridge Probate Judge Horowitz issued no written decisions explaining his reasoning for granting the Application for the Appointment of a Conservator of Maydelle Trambarulo. His November 2004 Order found that the evidence established by clear and convincing evidence that Maydelle Trambarulo was incapable of caring for herself and therefore it was appropriate to appoint Mark DellaValle as conservator.
The Order contained within the Court file indicates that DellaValle is Conservator of the person, only. See further discussion about the discrepancy in appointment in footnote 4.
Derby Probate Judge Hoyle, however, did issue a written decision in which he addressed several issues raised by the family. In his 2006 decision Judge Hoyle concluded that the circumstances giving rise to Trambarulo's appearance in Connecticut conferred jurisdiction to the Probate Court of Woodbridge. Specifically, he concluded that "The respondent [Trambarulo] came to Connecticut with the full assent of her family to receive care and treatment. She has indicated a strong desire to stay in Connecticut permanently. Her husband and family raised no jurisdictional issues from the time of the original application until Attorney Berman's current motion. The court finds that it has jurisdiction under C.G.S. 45a-648."
Additionally, Probate Judge Hoyle concluded that it was not in the best interest of Trambarulo to be returned to the care of her family. He also concluded that ". . . the evidence provided to the Court showed the respondent's family not to be particularly close. The respondent's husband himself is older and has been infirm and unable to provide for himself for some time. At the time Teresa M. Sirico . . . became involved, the respondent's health had deteriorated significantly. Uncontroverted testimony indicated she was then living in unhealthy and unsanitary circumstances in New Jersey . . . The respondent has been clear and consistent in indicating her desire to remain in Connecticut . . . The Court is not convinced that the respondent's family is willing to make the time commitments necessary to care for her if she returned to New Jersey . . ."
This court is mindful of its role in this appeal. According to Connecticut law, "[a]n appeal from a Probate Court to the Superior Court is not an ordinary civil action. Slattery v. Woodin, 90 Conn. 48, 50-51, 96 A.2d 178 (1915); Silverstein's Appeal from Probate, 13 Conn.App. 45, 53-53, 534 A.2d 1223 (1987). When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as a court of Probate. Satti v. Rago, 186 Conn. 360, 365, 441 A.2d 615 (1982); Appeal of Stevens, 157 Conn. 576, 581, 255 A.2d 632 (1969) . . ." Silverstein v. Estate of Silverstein, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 05 4002536, (Harleston, May 30, 2007). Appeal Pending.
Further, "`[t]he function of the Superior Court in appeals from a Probate Court is to take jurisdiction of the order or decree appealed from and to try that issue de novo. Baskin Appeal from Probate, 194 Conn. 635, 641, 484 A.2d 934 (1984); Satti v. Rago, supra, [186 Conn.] 364-65; Stevens' Appeal, supra, [157 Conn.App.] 54.' Kerin v. Strangle, 209 Conn. 260, 263-64, 550 A.2d 1069 (1988). Thereafter, upon `consideration of all evidence presented on the appeal which would have been admissible in the probate court, the superior court should exercise the same power of judgment which the probate court possessed and decide the appeal as an original proposition unfettered by, and ignoring, the result reached in the probate court.' Prince v. Sheffield, 158 Conn. 286, 298, 259 A.2d 621 (1969); Andrews v. Gorby, 237 Conn. 12, 16, 675 A.2d 449 (1996)." Silverstein v. Estate of Silverstein, supra, Superior Court, Docket No. CV 054002536.
I. Whether Appeal Properly Raises Issues of Personal and/or Subject Matter Jurisdiction
The plaintiff's first argument is that the Probate Court of Woodbridge lacked jurisdiction over Maydelle Trambarulo and therefore lacked the authority to appoint a Conservator in 2004. The defendant counters that the plaintiffs have waived their right to challenge jurisdiction. Therefore the first issue for this court to consider is whether or not the plaintiffs may properly challenge jurisdiction.
The defendant contends that the plaintiffs' challenge implicates issues related to personal jurisdiction, only. As such, the defendant argues that the plaintiffs have waived their right to make the challenge. The plaintiffs argue that their challenge is to the legal authority of the Probate Court to act concerning Maydelle Trambarulo, thus implicating issues of subject matter jurisdiction.
". . . [C]ourts of probate are strictly statutory tribunals . . ." In re Joshua S. 260 Conn. 182, 197, 796 A.2d 1141 (2002). Accordingly, "[t]he probate court . . . has only such powers as are given it by statute or are reasonably to be implied in order to carry out its statutory powers." Prince v. Sheffield, 158 Conn. 286, 293-4, 259 A.2d 621 (1969). ". . . [A] court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation." Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565, 192 A.2d 44 (1963).
"[I]n a proceeding before tribunals of limited jurisdiction, a defect in notice or a lack of necessary domicile or presence in the district may affect not only the jurisdiction over the person, but also the competency of the court to deal with the subject matter." R. Folson G. Wilhem, West Practice Group Guide, Probate Jurisdiction Procedure in Connecticut 2d (2006) § 2:9, 0.2-27.
There is no appellate authority specifically addressing the issue of whether C.G.S. § 45a-648, the statute at issue in this case, implicates subject matter or personal jurisdiction. There is at least one Superior Court decision which concludes that Probate Courts are deprived of subject matter jurisdiction unless the requirements of C.G.S. § 45a-648 are met. See, In Re Robinson v. Probate Appeal, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 03 0827331 (August 22, 2005, Booth, J.). And, there is appellate case law addressing other sections contained within the Probate Courts and Procedure (C.G.S. § 45a-1 et. seq.), which support the conclusion that the specific requirements of statutes authorizing Probate Courts to act, appoint and order implicate issues of subject matter jurisdiction. See, e.g. In Re Michaela Lee R., 253 Conn. 570, 579, 756 A.2d 214 (2000) (" . . . [T]he trial court improperly concluded that the Probate Court had subject matter jurisdiction over the defendant's request for a birth certificate amendment . . . [because] nothing in the statutory, implied or equitable powers of the probate courts provides them with such jurisdiction."). Probate courts "have no common-law jurisdiction." Id. Therefore, unless specifically authorized to act by statute, the probate court has no jurisdiction. See, Potter v. Alcorn, 140 Conn. 96, 100, 99 A.2d 97 (1953) ("Ordinarily, therefore, whether a Probate Court has jurisdiction to enter a given order depends upon the interpretation of a statute. 1 W. Locke P. Kohn, Connecticut Probate Practice (1950) p. 76.").
Thus, this court concludes that the plaintiffs' challenges to the Probate Court orders and actions implicate matters of subject matter jurisdiction.
It is axiomatic that one cannot consent to subject matter jurisdiction. Wheelabrator Lisbon, Inc. v. Dept of Public Utility Control, 283 Conn. 672, 685 (2007). And, once a challenge to subject matter jurisdiction is raised, in no matter what forum, it must be addressed. Commissioner of Transportation v. Rocky Mountain, LLC., 277 Conn. 696, 703, 894 A.2d 259 (2006). "[T]he question of subject matter jurisdiction is a question of law . . . and, once raised, either by a party or by the court itself, the question must be answered before the court may decide the case." Rayhall v. Akim Co., 263 Conn. 328, 337 A.2d 803 (2003).
Because the issues raised in this appeal concern subject matter jurisdiction, this court concludes that they are and were properly and timely raised. Therefore, this court must proceed to the next issue.
II
CT Page 16265
Whether Probate Court Had Subject Matter Jurisdiction over Maydelle Trambarulo
The next issue for this court to consider is whether or not the Probate Court properly exercised jurisdiction over Trambarulo. As noted earlier probate courts are statutory tribunals. As such they can only exercise those powers conferred upon them by statute. C.G.S. § 45a-648 requires that an application for involuntary appointment of a conservator "be filed in the court of probate in the district in which the respondent resides or has his domicile." Therefore, a Probate court may only consider and act upon an application made for a person who resides or has domiciliary in the court's district.Pursuant to statute, Woodbridge, Connecticut is within the Probate district of Woodbridge; and Derby, Connecticut is within the Probate District of Derby. Judge Horowitz was the Probate Judge of Woodbridge, at all times relevant for this appeal. Judge Hoyle was the Probate Judge of Derby, at all times relevant for this appeal.
There is no dispute in this case that Maydelle Trambarulo did not have a domicile in Connecticut at any time relevant to this action. Therefore, the issue in dispute is whether or not she could be considered a "resident" under C.G.S. § 45a-648.
Under Connecticut Probate Law, "[i]n general, [residence] means the place where one actually dwells. It connotes a place of living more permanent than a mere place of visit, but not necessarily so permanent as a domicile. Domicile and residence may be, and usually are, concurrent, but they are not necessarily so . . ." R. Folsom, West Practice Group Guide, supra, § 2:17, p. 2-46. "A person does not acquire a residence at a place of confinement, unless freely acquiesced . . . The reason for this is that residence consists of the two elements of abiding in a place and intending to make it a home." (Emphasis added.) Id., § 2:17, p. 2-47. "[W]hile a person does not legally reside in a place when only transiently present, persons may have a residence in a place in which they intend to live only temporarily . . . A person resides in the place where the usual conditions of household life obtain, even though that person may intend to live there only for a limited time." (Emphasis added.) Id., § 2:17, p. 2-48.
There is no clear authority in Connecticut defining the contours of "residency" under C.G.S. § 45a-648. Indeed, despite widespread use, the terms "residence," and "resident," have not been given detailed analysis. See 25 Am. Jur.2d Domicil § 9 (2006). ". . . A `chameleon-like' concept, it has been said that residence is something more than a mere physical presence and something less than domicil. It has been stated, in distinguishing between domicil and residence, that domicil involves the intent of an individual, while residence is a matter of objective fact." 25 Am. Jur. 2d, Domicil § 9 (2007).
In Connecticut, there appear to be only a couple of trial courts that have specifically addressed the issue of residence as that term is used in C.G.S. § 45a-648. However, Connecticut courts have considered what constitutes residence or residency in other contexts.
A. Connecticut Courts Addressing the Specific Issue of the Residency Requirement in C.G.S. § 45a-648
The trial court has been presented with and decided the issue of whether or not a Probate Court has jurisdiction to appoint conservators for individuals who are hospitalized in the Probate Court district. See, In Re Robinson v. Probate Appeal, supra, Superior Court, Docket No. CV 03 0827331; and Gross v. Rell, 485 F.Sup.2d 72 (D. Conn. 2007). In Robinson v. Probate, the court held that the Hartford Probate Court did not have subject matter jurisdiction over two individuals who were hospitalized in St. Francis, in Hartford, Connecticut because their respective residences and domiciles were in Windsor Locks and Middletown. Therefore, the trial court concluded that the Probate Court's appointment of conservators for the two wards was ineffectual and improper. Concluding that temporary hospitalization is insufficient to establish residency, "[t]he court finds no authority under Conn. Gen. Stat. § 45a-648a which would allow it to find an additional residence so as to confer jurisdiction on the Hartford Probate Court. The court does not find the hospitalization at St. Francis in and of itself sufficient to establish residence." Id.
An unreported Connecticut trial decision appears to have reached a similar conclusion. According to a Connecticut District Court decision, the Connecticut Superior Court voided the conservatorship of a New York resident in a habeas proceeding, finding that the probate court lacked jurisdiction over a man who was in Connecticut temporarily, recuperating from medical treatment performed in New York. Gross v. Rell, supra. According to the Gross decision:
News reports attribute the ruling to the Hon. Joseph T. Gormley, Jr., J.T.R. Unfortunately, the District Court decision does not mention the underlying trial Court case by name or docket number. Nor is there any in the District Court decision to the name of the trial court judge who granted the writ.
Daniel Gross was an 86-year-old man who was convalescing at his daughter's home in Waterbury, Connecticut . . . On August 8, 2005, [Gross] was admitted to Waterbury hospital because of continuing problems. After [Gross] remained there for nine days, an employee of Waterbury Hospital filed an application for the appointment of a conservator for [Gross] with the Waterbury probate court. Brunock, an attorney and the elected probate court judge . . . appointed Attorney Kathleen Donovan as conservator . . . At the request of Conservator Donovan, Brunock issued two orders, one on November 3, 2005, and the other on May 1, 2006, restricting visits by [Gross'] daughter. Finally, Brunock granted the conservator's application to sell the plaintiff's home in Long Island . . . [O]n July 12, 2006, the Connecticut Superior Court granted a writ of habeas corpus voiding the conservatorship, finding that the probate court lacked jurisdiction at the time the conservator was appointed because the plaintiff was neither a resident nor a domiciliary of the state of Connecticut.
From these two decisions, there appears to be consensus within the Connecticut trial bench that hospitalization does not establish the requisite residency under C.G.S. § 45a-648.
B. Connecticut Courts Considering the Issue of Residency in Other Contexts
This court next turns to case law in Connecticut which addresses the term "residence" in other contexts. The Connecticut Supreme Court, in a case addressing a statute providing jurisdiction to courts to allow a person to change one's name, has defined "[a] resident of a place [as] one who is an actual stated dweller in that place, as distinguished from a transient dweller there . . ." Don v. Don, 142 Conn. 309, 311, 114 A.2d 203 (1955).
In Baerst v. Board of Education, the Appellate Court, in construing General Statutes §§ 10-184 and 10-186 (regarding public education), noted that when the "term `residence' is not defined by the relevant statutory scheme . . . it is appropriate to consult the common understandings expressed in the law and in dictionaries." (Internal quotation marks omitted.) 34 Conn.App. 567, 642 A.2d 76 cert. denied 230 Conn. 915, 645 A.2d 1018 (1994).
"In State v. Anonymous, 34 Conn.Sup. 603, 605, 379 A.2d 1 (1977), the court reasoned that in determining if one was a transient guest, the following circumstances could be considered: `The length of stay, the existence of a special contract for the room, the fact that a person has another abode and the extent to which he has made the room his home for the time being . . .' In addition, the bona fide intent to reside at the time of entering into an agreement is another key factor to take into account. Hathaway v. Bornmann, 137 Conn. 322, 326, 77 A.2d 91 (1950)." (Internal quotation marks omitted.) Thomas v. Lenhart, 38 Conn.Sup. 1, 5-6, 444 A.2d 246 (1982).
In Connecticut, "[r]esidency is something more than transitory but less than domicile, which requires residency coupled with intent to remain. As applied in Connecticut domestic relations jurisprudence, there cannot be a finding of residence without an actual substantial physical presence." Morgan v. Morgan, 103 Conn. 189, 194, 130 A. 254 (1925).
C. Factors in Determining Whether the Residency Requirement Was Met
Black's Law Dictionary (8th Ed. 2004) defines a "resident" is: "1. A person who lives in a particular place. 2. A person who has a home in a particular place." And, "Webster's Third International Dictionary (Unabridged) 1971 defines `reside' as follows: to dwell permanently or continuously; have a settled abode for a time, have one's residence or domicile. `Residency' is defined as follows: the act or fact of abiding or dwelling in a place for some time; an act of making one's home in a place; the place where one actually lives or has his home as distinguished from his technical domicile." Mindich v. Mindich, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. FA 91 280982 (February 9, 1993, Moran, J.).
In analyzing the issue of subject matter jurisdiction, this court relies upon the following additional facts. Trambarulo traveled to Connecticut with the intention of only remaining temporarily. She packed for a short stay and left the bulk of her personal belongings, including clothing, furniture, jewelry and other personal items. (Those items are still, presumably, in the possession of her husband and family.) Trambarulo did not establish a domicile in Connecticut. She did not open any accounts in her name in Connecticut. She did not sign any rental or lease agreements or purchase any real estate in Connecticut. Trambarulo did not get telephone service in her name in Connecticut. Trambarulo executed no written instrument attesting her intention to establish residence in Connecticut. Further, Trambarulo made no verbal or oral representations of her intention to establish residency in Connecticut prior to her arrival in the State. Although the Probate Court referenced and relied upon representations Trambarulo has purportedly made since coming to Connecticut, all parties agree that Maydelle Trambarulo is mentally incapacitated and requires care-giver(s), guardian(s) and conservator(s), whether in Connecticut or in another state.
From all the evidence that was adduced at trial, it is clear that Maydelle Trambarulo came to Connecticut with the intention of staying only long enough to receive medical treatment that she and her family believed was not available to her in Delaware or New Jersey. It is equally clear that Maydelle Trambarulo intended to return to her home after receipt of such treatment.
This court finds that Maydelle Trambarulo did not establish a residence in Connecticut, although she was, a patient in Harborside Willows in Woodbridge, Connecticut at the time of the Appointment of Conservator. Further, this court finds that the issue of subject matter jurisdiction issue was properly; and improperly decided by the Probate Court. Accordingly, this court concludes that neither the Probate Court of Woodbridge nor the Probate Court of Derby had jurisdiction over Maydelle Trambarulo.
III. Public Act 07-116 § 13
Recently, the legislature has amended the law governing Probate Courts and the Appointment of Conservators. See, Public Act 07-116 which takes effect October 1, 2007. Neither party briefed or argued the applicability of this act to this action, and I make no explicit ruling upon whether or not the act should be applied retroactively. Rather, I reference Public Act 07-116 because it provides a useful statement of the current legislative intent regarding "non-domiciliary" persons and the appointment of conservators.
In section 13 of P.A. 07-116, the new law requires that:
(a) "An application for involuntary representation may be filed by any person alleging that a respondent is incapable of managing his or her affairs or incapable of caring for himself or herself and stating the reasons for the alleged incapability. The application shall be filed in the court of probate in the district in which the respondent resides, is domiciled or is located at the time of the filing of the application."
Subsection (a) creates a new category of persons for whom applications for involuntary representation may be made: persons who neither reside in a district, nor are domiciled in the district, but are located in that district. Clearly, Maydelle Trambarulo would fall within this newly created category because she was physically located within the Probate districts of Woodbridge and Derby, Connecticut, even though she was neither a resident or domiciliary of either district.
Public Act 07-116 then goes on, in section (b) to establish the criteria which must be met when appointing a guardian for one who does not reside or have a domicile in a district. "An application for involuntary representation for a nondomiciliary of the state made pursuant to subsection (a) of this section shall not be granted unless the court finds that (1) respondent is presently located in the probate district in which the application is filed; (2) applicant has made reasonable efforts to provide notice to individuals and applicable agencies . . .; (3) respondent has been provided an opportunity to return to the respondent's place of domicile, and has been provided the financial means to return to the respondent's place of domicile within the respondent's resources, and has declined to return or the applicant has made reasonable but unsuccessful efforts to return the respondent to such respondent's place of domicile; and (4) requirements of this chapter for the appointment of conservator pursuant to an application for involuntary representation have been met."
Public Act 07-116 also requires the court to review any involuntary representation of a nondomiciliary every sixty days. And, the Act makes it a crime for a person to fraudulently or maliciously pursue an application for involuntary representation or appointment of a temporary conservator.
It is the clear from the revised language within the Public Act that the legislature intends to prevent the Probate Courts from exercising jurisdiction over non-resident, non-domiciliary, without first allowing those individuals the right to return to their home states.
IV. Conclusion
Because this court finds that the Probate Court does not have jurisdiction, pursuant to C.G.S. section 45a-648, the court need not decide the other issues raised by the plaintiffs. This court finds that the plaintiffs are aggrieved and reverses the ruling of the Probate Courts regarding jurisdiction over Maydelle Trambarulo. The court further orders that arrangements be made to transfer guardianship of Maydelle Trambarulo to an appropriate individual or entity in New Jersey, where the husband and at least two children reside. Finally, this court orders that Maydelle Trambarulo be permitted to leave Connecticut when necessary arrangements are made.
For purposes of any appeal of this court's ruling, this court considers this Memorandum of Decision to merely be an articulation of its Preliminary Ruling, issued orally on Friday, September 21, 2007.