Karen Godin v. Estate of Robert Buchholz et al. (2010)

MEMORANDUM OF DECISION ON MOTION TO DISMISS

This is an appeal from the decision of the Windsor Locks Probate Court involving the assets of the Estate of Robert Buchholz the father of the plaintiff, Karen Godin.   On February 5, 2010, the Probate Court (Kervick, J.) ordered Godin to reimburse the estate $103,162.24 based upon an accounting action brought by Robert Platt, the estates' administrator.   The clerk of the Probate Court mailed the order to all of the interested parties, Godin, Platt and Robert Buchholz, the son of the decedent, on February 8, 2010.

On March 9, 2010, Godin filed a probate appeal and a summons with the Superior Court alleging that the Probate Court's order aggrieved her.   Prior to filing the appeal with the Superior Court, Godin had mailed a copy of the appeal to the interested parties and the Probate Court judge who issued the February 5, 2010 order.   On August 30, 2010, the estate filed this motion to dismiss Godin's appeal for lack of subject matter jurisdiction to hear the appeal.   On September 15, 2010, Godin filed a return of service with the court.   The return of service, dated September 10, 2010 stated that a marshal had served the estate and the Probate Court judge by in hand service on September 7, 2010 and that on September 10, 2010 the marshal served the deceased's son through the secretary of the state by in hand service.

In its motion to dismiss, the estate claims that the court lacks subject matter jurisdiction over the probate appeal because Godin did not comply with the requirements of General Statutes 45a-186, the statute that governs the procedures of filing a probate appeal.

I

General Statutes § 45a-186 confers upon an aggrieved party an absolute right to appeal orders of the Probate Court to the Superior Court.  Heussner v. Hayes, 289 Conn. 795, 807-08, 961 A.2d 365 (2008).  Section 45a-186(a) provides that any person aggrieved by a Probate Court order may, not later than thirty days after the mailing of such order, file an appeal in the Superior Court in the juridical district where the presiding Probate Court is located.   Subsection (b) states:  “Each person who files an appeal pursuant to this section shall serve a copy of the complaint on the court of probate that rendered the order, denial or decree appealed from and on each interested party.   The failure of any person to make such service shall not deprive the Superior Court of jurisdiction over the appeal ․ [S]ervice of the copy of the complaint shall be by state marshal, constable, or an indifferent person.   Service shall be in hand or by leaving a copy at the court of probate that rendered the order being appealed, or by leaving a copy at the place of residence of the interested party being served or at the address of the interested party on file with said court of probate ․” Section 45a-186(c) provides that within fifteen days of filing the appeal with the Superior Court, the plaintiff “shall” file a document containing:  the name, address and signature of the person making the service and a statement of the date and manner which the Probate Court and each interested party was served.   Finally, § 45a-186(d) states:  “If service has not been made on an interested party, the Superior Court, on motion, shall make such orders of notice of the appeal as are reasonably calculated to notify any necessary party not yet served.”

The estate argues that Godin did not follow the requirements of § 45a-186 because she mailed a copy of the probate appeal to the interested parties, instead of making personal service in accordance with subsection (b), and she did not file a return document with the Superior Court.   The estate acknowledges that although previous Superior Court cases have held that minor procedural defects in following § 45a-186, Godin's failures to comply with the statute amounted to “pervasive major procedural defects in the procedure set forth under [the statute],” depriving the court of subject matter jurisdiction and requiring the appeal to be dismissed.

Godin concedes that she did not follow the procedures of § 45a-186 when she filed her probate appeal.   Despite these procedural deficiencies, Godin relies on subsection (b) of the statute, which explicitly states that a failure to serve does not deprive the court of jurisdiction and that this subsection applies to both a failure to serve interested parties and a failure to file a return document with the Superior Court.   Subsequent to the filing of the motion to dismiss, Godin properly served the interested parties and filed a return of service with the court to comply with subsection (c) of the statute.

II

Section 45a-186 was amended by Public Acts 2007, No., 07-116, § 2, replacing subsections (a) and (b) with the above mentioned subsections and adding subsection (c).  Despite a scarcity of cases that have interpreted the service requirements of § 45a-186, there have been two since the 2007 amendments that have held that a failure to comply with the notice requirements does not deprive the Superior Court of subject matter jurisdiction over a probate appeal.   In Palmer v. Pawelczyk, Superior Court, judicial district of Fairfield, Docket No., CV 07-4022946-S (November 3, 2008, Arnold, J.), the plaintiff filed a probate appeal, leaving copies with the Probate Court and the interested parties but did not specify in his return of service how such service was rendered.  Id. In holding that it had subject matter jurisdiction over the probate appeal, the court analogized the defects in the return of service to failing to name an adverse party by notice in a probate appeal stating:  “The statutory notice requirements are not essential to probate appeals ․ When the appeal is properly taken and allowed, the jurisdiction of the Superior Court over the cause attaches.   The court, however, will not proceed with the appeal until all appellees have had notice of the appeal.   Any defect in the notice should be corrected before trial.”   (Internal quotation marks omitted.)  Id. Relying on this reasoning, the court held that minor defects in complying with the return of service requirements of § 45-186(c) would not deprive the court of subject matter jurisdiction and pursuant to § 45-186(d), the court may direct a party to notify a necessary party in accordance with the statute.  Id.

In Gregoire v. Thompson Probate Court, Superior Court, judicial district of Windham at Willimantic, Docket No., CV 08-4008194-S (March 3, 2009, Foley, J.) [47 Conn. L. Rptr. 329], the plaintiff filed a probate appeal but directed service to the defendant by registered or certified mail and failed to file a return of service with the court.   In holding that these failures did not deprive the court of subject matter jurisdiction, the decision recognized that prior to the 2007 amendments “[a] defect in notice did not require the dismissal of the case, but rather the court would order that the defect be remedied before further proceeding” and that “there is nothing to indicate that the legislature intended, in enacting [Public Acts 2007, No., 07-116, § 2], to deviate from the previous treatment of notice defects as non-jurisdictional ․” Id. The court also looked to the language subsections (b) and (d), which explicitly state that the court is allowed to direct parties to cure defects in notice.  Id. In cases where a party fails to give proper notice, the “remedy is that the court should reserve the right to order, if necessary, notice which does comply with § 45a-186(b) and (c) before further proceeding with the case.”  Id.

Godin's failure to initially serve the Probate Court and other interested parties by in hand service through a marshal is only a minor procedural deviation, because § 45a-186(d) contemplates that the court may subsequently order the plaintiff to properly serve interested parties.   In this case, Godin filed a return of service with the court after the estate filed its motion to dismiss stating that she served the Probate Court and the interested parties in accordance with § 45a-186.

It is concluded that based on the holdings of Palmer and Gregoire and the remedial language of § 45a-186(b) and (d), that Godin's failure does not deprive the court of subject matter jurisdiction to hear her probate appeal.

III

Although neither party raised the issue, it is noted that the proper measuring date for the thirty-day limit in filing a probate appeal is set forth in § 45a-186(a), which uses the date of the mailing of the Probate Court order or decision.   See Gates v. Gates, 51 Conn.Sup. 148, 155, 975 A.2d 147 [46 Conn. L. Rptr. 102] (2008), aff'd., 115 Conn.App. 293, 971 A.2d 852 (2009) (probate appeal is commenced by filing with Superior Court not later than thirty days after the mailing of Probate Court's order).   Since the Probate Court mailed its order on February 8, 2010 and Godin filed her appeal on March 9, 2010, the appeal was timely filed in the Superior Court.

Motion to dismiss denied.

Wagner, J., JTR

Wagner, Jerry, J.T.R.