Opinion
No. CV 05-4009557
July 21, 2006
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #104
The plaintiff, Richard Caraglio, alleges the following facts in his complaint. The plaintiff and the defendant, Karen Balcerzak, are the biological parents of Heather Caraglio, who was born in 1987 and died in 2002, and Christine Caraglio, who was born in 1984. The plaintiff and the defendant were divorced in November 1992. The divorce decree granted sole custody of the two minor children to the defendant, but it gave the plaintiff specific visitation rights. Because the defendant wrongfully deprived the plaintiff of his visitation rights from December of 1991 or January of 1992, the plaintiff stopped visiting his children. A medical malpractice lawsuit was instituted on behalf of Heather Caraglio in 1990, and was settled for structured payments totaling over $2 million in 1997.
In ¶¶ 5 and 6 of count one, the plaintiff appears to have mistakenly switched the word "the plaintiff" with the word "the defendant." For example, in ¶ 6, the plaintiff states that "Visitation . . . went well until . . . the plaintiff wrongfully deprived the defendant of all visitation . . ." In ¶ 7, however, the plaintiff alleges that "the defendant continued to refuse visitation wrongfully to the plaintiff . . ."
In June of 2000, the defendant applied to the Probate Court for the district of Branford for the termination of the plaintiff's parental rights. In her application, the defendant represented that: (1) the plaintiff's last known address was 34 Whitney Avenue, Trumbull, Connecticut; (2) the plaintiff's whereabouts were unknown and her efforts to obtain the contact information of his parents or relatives were unsuccessful despite an extensive search; (3) the plaintiff had abandoned Heather Caraglio; and (4) the plaintiff had no visitation with Heather Caraglio since January 1993. Relying upon these representations of the defendant, the Probate Court granted the application for termination of the plaintiff's parental rights in August 2000. The plaintiff did not receive notice of the termination proceedings until the Probate Court had wanted the application and the appeal period had run.
The plaintiff further alleges that the defendant knew that her representations were false and that they were, in fact, false. The defendant made no diligent efforts to contact the plaintiff's parents and relatives in order to learn the plaintiff's address, and the defendant knew the plaintiff's former address was 39 Whitney Avenue, not 34 Whitney Avenue. The defendant made these false representations in order to induce the Probate Court not to give the plaintiff notice and also to induce the nonappearance of the plaintiff in the termination proceedings, both of which actually occurred. The defendant's true purpose for instituting the termination proceedings was to obtain the settlement of Heather Caraglio's medical malpractice suit. The proceedings, therefore, represent a fraud on the Probate Court and a fraud against the plaintiff.
On the first count, the plaintiff seeks a declaratory judgment that the termination of his parental rights by the Probate Court was void and unenforceable, as well as an injunction enjoining any use of the termination judgment. On the second count, sounding in fraud, the plaintiff further seeks money damages in the amount of one-half of the total amount received in settlement of Heather Caraglio's medical malpractice claim.
On November 25, 2005, the defendant filed a motion for summary judgment on the grounds that: (1) the statute of limitations bars the plaintiff's appeal from the Probate Court's decree terminating his parental rights regardless of whether he had legal notice of the proceedings; (2) a declaratory judgment action should not be used as a substitute for an appeal; (3) the statute of limitations bars the plaintiff's declaratory judgment action; and (4) since there is no bona fide issue in dispute or uncertainty in the legal relations between the parties, the plaintiff's declaratory judgment action is inappropriate. In support of her motion, the defendant submitted a memorandum of law and a certified copy of an appearance, dated September 18, 2002, by the plaintiff's former counsel, filed in the Probate Court for the district of Branford on behalf of the plaintiff.
On March 16 2006 the plaintiff filed a memorandum in opposition to the defendant's motion arguing that: (1) there exists a genuine issue as to whether the plaintiff received legal notice of the termination proceedings; (2) since the complaint adequately alleges that the Probate Court decree was procured by fraud or, at best, by mistake, the plaintiff's action constitutes an appeal to the general equitable power of the court, which the court should allow even if the governing statute of limitations has expired; (3) the doctrine of laches, not the statute of limitations, governs an appeal to the general equitable power of the court; and (4) since the plaintiff adequately alleges fraud in the procurement of the Probate Court decree and the defendant failed to submit any sworn affidavits or other admissible evidence to controvert those allegations, there exists a clear dispute as to the legal relations between the parties and a declaratory judgment is an appropriate remedy in this matter. The court heard oral argument on this motion on May 15, 2006.
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 30-31, 889 A.2d 785 (2006). "The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 46, 881 A.2d 194 (2005).
"On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint . . . 49 C.J.S. 365, Judgments § 261(b) (1997).
It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial. 49 C.J.S. 366, supra, § 261(b). Accordingly, [w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue. Allstate Ins. Co. v. Barron, [ 269 Conn. 394, 405, 848 A.2d 1165 (2004)]; see also Harvey v. Boehringer Ingelheim Corp., [ 52 Conn.App. 1, 8-9, 724 A.2d 1143 (1999)] (where summary judgment movant's affidavit did not dispense with factual issues raised by opponents' counterclaim, burden of proof did not shift to opponents, and their failure to file supporting affidavits was not a fatal flaw to their objection); cf 49 C.J.S. 379, supra, § 266 (if the party moving for summary judgment fails to show that there are no genuine issues of material fact, the nonmoving party may rest on mere allegations or denials contained in his pleadings)." (Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 229-30 (2006). If the moving party has failed to sustain its burden of demonstrating the absence of a genuine issue of material fact, its motion for summary judgment is denied. Rodriguez v. Housing Authority, 45 Conn.Sup. 136, 143, 702 A.2d 417 (1997).
In the memorandum of law in support of her motion for summary judgment, the defendant claims that the applicable statute of limitations, General Statutes § 45a-187, bars the plaintiff's appeal from the Probate Court's decree terminating his parental rights. Citing General Statutes § 45a-716, she first maintains that the plaintiff received proper legal notice of the termination proceedings because, after unsuccessful service at the plaintiff's last place of abode, "service was then made by publication having a circulation in the Trumbull area." She did not submit any affidavits or other proof in support of this statement or her conclusory statement that "notice to [the plaintiff] was completely proper and in accordance with the law." She further asserts that the plaintiff failed to bring his appeal within thirty days of the decree as required by § 45a-187. The plaintiff however, alleges in his complaint that the defendant deliberately misrepresented to the Probate Court that his whereabouts were unknown when she knew his correct former address. As the plaintiff correctly points out, unless the defendant had first made a reasonable effort to serve him at his usual place of abode, she could not have satisfied the notice requirement under § 45a-716 through notice by publication. The defendant failed to establish, by submission of sworn affidavits or other admissible evidence, that she made a reasonable effort to serve the plaintiff at his usual place of abode. Accordingly, there exists a genuine issue of material fact as to whether the plaintiff received proper legal notice of the termination proceedings.
General Statutes § 45a-187, Time of Taking Appeals, provides, in relevant part:
(a) An appeal . . . by persons . . . who have legal notice to be present . . . shall be taken within thirty days . . . If such persons have no notice to be present and are not present . . . such appeal shall be taken within twelve months, except for appeals by such persons from an order of termination of parental rights . . . in which case appeal shall be taken within ninety days.
General Statutes § 45a-716, Hearing on Petition to Terminate Parental Rights, Notice, provides, in pertinent part:
(c) [N]otice of the hearing and a copy of the petition . . . shall be served at least ten days before the date of the hearing by personal service or service at the person's usual place of abode on the [the parent or parents of the minor child] . . . If the address . . . is unknown, or if personal service or service at the person's usual place of abode can not be reasonably effected . . . a judge or the clerk of the court shall order notice to be given by registered or certified mail . . . or by publication at least ten days before the date of the hearing. Any such publication shall be in a newspaper of general circulation in the place of the last-known address of the person to be notified . . . (Emphasis added.)
The defendant next claims that, even if the plaintiff did not receive legal notice, the maximum time he had to appeal the termination decree under § 45a-187 was ninety days. The plaintiff counters that § 45a-187 is inapplicable to his action because it is an appeal to the general equitable power of the court, not an appeal de novo. In Phinney v. Rosgen, 162 Conn. 36, 37, CT Page 13690 291 A.2d 218 (1971), the plaintiff filed her appeal more than thirty days after a Probate Court decree and sought to avoid the statute of limitations by arguing, in part, that "she was induced by the misrepresentations of the executor to sign the waiver of notice of the probate proceedings." The Supreme Court stated that "[s]ince the appeal was not taken in time, the plaintiff cannot have the probate decree reviewed by a trial de novo in the Superior Court . . . Her only recourse on the ground of misrepresentations would be by an appeal to the general equitable power of the Superior Court, which may, in proper cases, grant relief against decrees of the Probate Court procured by fraud, accident, mistake and the like." (Citation omitted; internal quotation marks omitted.) Id., 42. In Pignataro v. Capiello, Superior Court, judicial district of Bridgeport, Docket No. CV 95 0319464 (May 16, 1996, Levin, J.), the plaintiff did not receive notice of the Probate Court proceedings for the termination of his parental rights. After almost two years from the date of the termination decree, the plaintiff in Pignataro alleged that the defendants fraudulently withheld the plaintiff's location from the Probate Court and requested, inter alia, that the court declare the Probate Court decree null and void. The court rejected the defendants' argument that the plaintiff's appeal did not comply with § 45a-187. Citing the above language from Phinney v. Rosgen, the court in Pignataro held that "[t]he plaintiff's complaint contains specific allegations of fraud and collusion by the defendants. Additionally, the plaintiff solicits this court to exercise its equitable powers to grant the plaintiff relief . . . [T]he plaintiff has alleged an equitable cause of action, independent of the statutory right to appeal a probate decree." Id. In the present case, the plaintiff adequately alleged that the termination decree was procured by fraud, or, at best, by mistake and the defendant failed to submit any evidence to contradict those allegations. Under these circumstances, the court may properly exercise its equitable power over the plaintiff's action even if it has been more than ninety days since the date of the termination decree.
The defendant appears to argue, in the alternative, that even if the plaintiff did not receive legal notice of the termination proceedings and the discovery of fraud temporarily tolled the underlying statute of limitations, the statute of limitations nonetheless bars the plaintiff's action because he did not file it within ninety days of receiving actual notice of the decree. The ninety-day time period under § 45a-187 "begins to run only after the person taking the appeal receives notice of the decree. CT Page 13691 Kron v. Thelen, 178 Conn. 189, 197, 423 A.2d 857 (1979). [Where the plaintiff never received notice of the termination proceedings] the time to appeal runs from the date when the party seeking to appeal receives actual notice of the decree, regardless of the informality of the source. Cf. Habura v. Kochanowicz, 40 Conn.App. 590, 592-93, 672 A.2d 512 (1996) (where clerk failed to give notice of judgment, four month period within which to open ran from receipt of letter from opposing attorney informing defendants of judgment)." Pignataro v. Capiello, Superior Court, judicial district of Bridgeport, Docket No. CV 95 0319646 (December 5, 1996, Levin, J.).
In the present case, the defendant submitted a certified copy of an appearance by the plaintiff's former counsel, Daniel D. Skuret, which she maintains was filed on the plaintiff's behalf in the Probate Court's termination of parental rights file on September 18, 2002. It is unclear from the copy of the appearance by itself however, whether Skuret's appearance was filed in the Probate Court in connection with Heather Caraglio's estate file or the termination of the plaintiff's parental rights file. The defendant's single piece of evidence is simply insufficient to prove that the plaintiff had actual notice of the termination decree on September 18, 2002. Therefore, there is a genuine issue of material fact as to when the plaintiff may have received actual notice.
The defendant's contention that the plaintiff is using this declaratory judgment action inappropriately as a substitute for an appeal is unpersuasive. As in Pignataro v. Capiello, supra, Docket No. CV 95 0319464, where a Probate Court decree has been procured by fraud, mistake, and the like, the court may allow a declaratory judgment action. "Equity has, in general, the same power to grant relief against probate judgments as against ordinary judgments." DelVecchio v. DelVecchio, 146 Conn. 188, 193, 148 A.2d 554 (1959).
The defendant's final argument is that, since there is no bona fide issue in dispute or uncertainty in the legal relations between the parties, the plaintiff's declaratory judgment action is improper. As genuine issues of material fact exist as to whether the plaintiff received legal notice of the Probate Court termination proceedings and when he may have received actual notice of the decree, this argument also must fail. Because the defendant has failed to meet her burden of establishing that there are no genuine issues as to any material fact and that she is entitled to judgment as a matter of law, her motion for summary judgment is denied.