Opinion
No. CV02-0174420S
May 19, 2004
MEMORANDUM OF DECISION
The Appellant, Judi Stowell, is the mother of a daughter, Britni Stowell, who is the subject of this cause of action. The Appellant and Britni had resided with the Appellees, Julie Prater and Bill Prater, the parents of the Appellant and maternal grandparents of Britni, in Middlebury, Connecticut. On or about July 23, 2002, the Appellees filed a petition with the Probate Court for the District of Waterbury, seeking temporary custody of Britni and removal of the Appellant as guardian of Britni. On or about August 5, 2002, the Probate Court granted the Appellees petition for temporary custody.
On or about August 8, 2002, the Appellant filed a petition with the Probate Court seeking visitation orders with Britni. This petition was the subject of a hearing before the Probate Court on August 20, 2002. The Probate Court issued a decision denying the Appellant's petition. On August 27, 2002, the Appellant filed a Motion to Transfer to the Superior Court pursuant to General Statutes § 45a-623. On September 19, 2002, the Probate Court, after hearing, denied the Appellant's Motion to Transfer to Superior Court. The Probate Court, further ordered, on its own motion, pursuant to § 45a-623, to "transfer the case to another Judge of Probate; which Judge shall be appointed by the Probate Court Administrator from a panel of qualified Probate Judges who specializes in children's matters."
From the denial of her Motion to Transfer to Superior Court, the Appellant takes this appeal.
The issue before this Court is whether the language of § 45a-623 is mandatory or directory regarding transfer of this case from the Probate Court to the Superior Court, upon motion made by a party to the proceeding. The parties have briefed the issue and waived both an evidentiary hearing and oral argument.
Section 45a-623 as amended in 2000 states the following.
In any proceeding under sections 45a-603 to 45a-622, inclusive, that is contested, the Court of Probate shall, upon motion of any party other than a party who made application for the removal of a parent as a guardian, under rules adopted by the judges of the Supreme Court, transfer the case to the Superior Court.
In addition, to the provisions of this section, the Court of Probate may, on the court's own motion or that of any interested party, transfer the case to another judge of probate, which judge shall be appointed by the Probate Court Administrator from a panel of qualified probate judges who specialize in children's matters. Such panel shall be proposed by the Probate Court Administrator and approved by the executive committee of the Connecticut Probate Assembly. The location of the hearing shall be in the original court of probate, except upon agreement of all parties and the Department of Children and Families, where applicable. If the case is transferred and venue altered, the clerk of the Court of Probate shall transmit to the clerk of the Superior Court or the probate court to which the case was transferred the original files and papers in the case.
(Emphasis added.)
Prior to 2000, the statute, which was originally enacted in 1993, did not include the highlighted section. The 2000 amendment, added that portion of the statute highlighted above. The first sentence of the statute was not amended in any way by the 2000 amendment.
The Appellant argues that § 45a-623 is mandatory in its direction to transfer a contested matter to the Superior Court upon motion made by any party to the proceedings. The Appellees counter by arguing that with the addition of the 2000 amended language, that § 45a-623 is discretionary, allowing the Probate judge the option to choose the forum for the contested matter.
The court, in its analysis, is cognitive of and deferential to the recently enacted No. 03-154 of the 2003 Public Acts, An Act Concerning Statutory Interpretation, which states:
The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.
The court's review of precedent finds the Supreme Court has established the test to be used to determine whether a statute is mandatory or discretionary.
In Lauer v. Zoning Commission of the Town of Redding, 246 Conn. 251, 262, 716 A.2d 840 (1998), the Supreme Court stated the rule as follows.
The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience . . . If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words . . . Such a statutory provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply . . . A reliable guide in determining whether a statutory provision is directory or mandatory is whether the provision is accompanied by language that expressly invalidates any action taken after noncompliance with the provision.
(Citations omitted; internal quotation marks omitted.)
See also United Illuminating Co. v. New Haven, 240 Conn. 422, 465-66, 692 A.2d 742 (1997).
"The use of the word shall in conjunction with the word may confirms that the legislature acted with complete awareness of their different meanings . . . and that it intended the terms to have different meanings. (Citation omitted; internal quotation marks omitted.) Waterbury v. Washington, 260 Conn. 506, 531-32, 800 A.2d 1102 (2002). "Definitive words, such as must or shall, ordinarily express legislative mandates of a nondirectory nature." (Internal quotation marks omitted.) State v. Murray, 254 Conn. 472, 489, 757 A.2d 578 (2000). "Absent an indication to the contrary, the legislature's choice of the mandatory term `shall' rather than the permissive term `may' indicates that the legislative directive is mandatory." Bailey v. State, 65 Conn. App. 592, 604, 783 A.2d 491 (2001).
After review of the statutory language of § 45a-623 with the guidance of the precedent as stated, the court concludes the following.
The statute, prior to the 2000 amendment, provided for the mandatory transfer of a contested matter to the Superior Court upon motion made by a party to the Probate Court. This portion of the statute was not amended by the legislature.
The 2000 amendment to the statute provides for an additional discretionary proceeding; referral to another Probate Judge. That option is available by motion of a party or on the Probate Court's own motion.
However, as this court interprets the statute, once a party has moved to transfer the matter to the Superior Court, the Probate Court lacks discretion in not granting the transfer. The party having so moved, has elected its remedy.
It is foreseeable that one party would move to transfer a contested matter to another probate judge, while another party would move to transfer to the Superior Court. It appears plain, by its language, that the Probate Court would have no discretion but to transfer the matter to the Superior Court pursuant to § 45a-623 in such a scenario.
Therefore, this court concludes, that the Probate Court lacked discretion in denying the Appellant's Motion to Transfer, pursuant to § 45a-623. The court sustains the Appellant's appeal and orders the Probate Court for the District of Waterbury to transfer the original files and papers in this matter to the Superior Court for the Judicial District of Waterbury at Waterbury.
AGATI, J.