Josephine Perrone et al., Co–Administratrixes for the Estate of Daniel Riley v. State of Connecticut et al. (2011)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS

This action is brought by the co-administratrixes of the estate of Daniel Riley against the state of Connecticut seeking damages for wrongful death ¹ and against the individually named defendants, judicial marshals, for violations of civil rights and intentional infliction of emotional distress.   Daniel Riley (plaintiffs' decedent) committed suicide on April 3, 2005, while being held at the New Haven county jail.   On August 18, 2005, the plaintiffs were appointed coadministratrixes by the Bridgeport Probate Court.

The defendants moved to dismiss the instant action by claiming that this court lacks subject matter jurisdiction because the plaintiffs lack standing to sue.   Specifically, the defendants claim that plaintiffs' decedent was a domiciliary of New Haven, not Bridgeport, at the time of his death and that the Bridgeport Probate Court therefore lacked jurisdiction to appoint plaintiffs as administrators.   The court heard oral argument on the present motion on July 25, 2011.

For the reasons stated herein, the court concludes that Bridgeport was the domicile of plaintiffs' decedent on the date of his death and that the Bridgeport Probate Court therefore did in fact have jurisdiction to appoint the plaintiffs as co-administratrixes of the estate of plaintiffs' decedent.   Accordingly, this court has jurisdiction over this matter, and the motion to dismiss is denied.

STANDARD OF REVIEW

A motion to dismiss “properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law or fact state a cause of action that should be heard by the court ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007);  Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007).  “The court may decide the motion on the basis of the complaint alone, on the basis of the complaint supplemented by undisputed facts established by affidavits or other types of undisputed evidence filed in support of the motion.”  Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550–51 n.8 (2011);  see also Conboy v. State, 292 Conn. 642, 650–51, 974 A.2d 669 (2009).  “The burden rests with the party who seeks the exercise of jurisdiction in his favor ․ clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.”  (Internal quotation marks omitted.)  Goodyear v. Discala, 269 Conn. 507, 511, 849 A.2d 791 (2004).   It is well established that, “in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”   (Internal quotation marks omitted.)  Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).

Resolution of this matter concerns a legal conclusion as to the domicile of plaintiffs' decedent on the date of his death.   Both parties filed affidavits and documentation in support of their respective positions.   Based upon the substantial evidence before the court, the court makes the following conclusions.   Plaintiffs' decedent was a domiciliary of Bridgeport immediately prior to his incarceration in March 2004.   Upon his release from jail, he temporarily resided in New Haven.   Plaintiffs' decedent did not abandon his Bridgeport domicile.   On the date of his death, 424 Merritt Street, Bridgeport was the permanent address and domicile of plaintiffs' decedent.

The court renders these conclusions based upon the following undisputed facts.   Prior to his incarceration in March 2004, plaintiffs' decedent resided at his family home located at 424 Merritt Street, Bridgeport.   In March 2004, plaintiffs' decedent was incarcerated in Bridgeport Correctional Center in Bridgeport.   He remained until September 3, 2004, when he was remanded to the jail re-interview transitional housing center located at 48 Howe Street, New Haven.   On October 13, 2004, while residing at the transitional housing center, plaintiffs' decedent renewed his driver's license with the Connecticut department of motor vehicles and listed his address as 48 Howe Street, New Haven.   Thereafter, on January 7, 2005, he appeared in Bridgeport Superior Court, received a suspended sentence in connection with the charge of violation of probation and was placed on probation for the period of two years.   On February 3, 2005, he reported to his probation officer that he just moved to New Haven and requested that his probation be transferred to the New Haven office of adult probation.   On February 9, 2005, he reported to his probation officer that he was staying with his girlfriend at 358 Orange Street, Apartment 407, New Haven.   On March 20, 2005, he was arrested for an incident that occurred at 358 Orange Street, New Haven.   The police report in connection with the decedent's arrest on March 20, 2005 lists his address as 48 Howe Street, New Haven.   Plaintiffs' decedent was released on bond.   His appearance bond dated March 28, 2005 lists his address as 358 Orange Street, New Haven.   He was again arrested on April 3, 2005.   The police report in connection with his arrest on April 3, 2005 lists his address as 48 Howe Street, New Haven.   The April 3, 2005 report lists Emily Davidson as the complainant and alleges plaintiffs' decedent unlawfully took money from her bank account using her ATM card.   The report indicates that Davidson informed the investigating officer that she did not want plaintiffs' decedent to return to her apartment.   Upon his arrest on April 3, 2005, plaintiffs' decedent was informed by the arresting officer that he was no longer welcome at 358 Orange Street, New Haven and that he would be arrested for trespassing if he returned to that location.   Plaintiffs' decedent committed suicide on April 3, 2005 while being held at the New Haven county jail.

DISCUSSION

The issue before the court is whether Bridgeport was the domicile of plaintiffs' decedent on the date of his death.²

It has long since been recognized that probate courts are courts of limited jurisdiction and can exercise only such powers as are conferred upon them by statute.  Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565, 192 A.2d 44 (1963).  General Statutes § 45a–303(a)(1) confers upon the probate courts of our state the power to grant letters of administration only where the decedent was domiciled in their district at the time of death.  General Statutes § 45a–309 expressly provides that the probate judge, when appointing an administrator for the estate of any deceased person, must make a finding as to the domicile of such person at the time of death.   In accordance with § 45a–309, the probate judge made a determination that Bridgeport was the domicile of plaintiffs' decedent, as is evidenced by the decree granting administration in Daniel Riley's estate.

It is well established that a person may have more than one residence but only one domicile.  Clegg v. Bishop, 105 Conn. 564, 136 A.2d 102 (1927);  Argent Mortgage Co., LLC v. Deyse M. Huertas, 288 Conn. 568, 953 A.2d 868 (2008).  “Residence does not necessarily import domicil ․” (Citations omitted;  internal quotation marks omitted.)  Clegg v. Bishop, supra, 105 Conn. 570.   In order to establish a new domicile, one must establish residence with the intention of abandoning his prior domicile and permanently remaining in the new location.  McDonald v. Hartford Trust Co., 104 Conn. 169, 177, 132 A. 902 (1926).   Thus, the intention with which the change in residence is accompanied is the determinative factor in deciding a change in domicile.

In support of their argument that plaintiffs' decedent was domiciled in New Haven at the time of his death, the defendants rely upon the fact that he gave 48 Howe Street, New Haven as his address to the department of motor vehicles when he renewed his driver's license on October 13, 2004.   It is undisputed that this was the address of his transitional housing.   The court finds that plaintiffs' decedent did not intend for this to be his permanent home.

The defendants also submitted the office of adult probation case notes pertaining to plaintiffs' decedent as evidence, inter alia, that on February 3, 2005 and February 9, 2005, respectively, the probation officer recorded that plaintiffs' decedent told him that he had recently moved to New Haven and that he was staying with his girlfriend at 358 Orange Street, New Haven.   Defendants contend further that the police reports of March 20, 2005 and April 3, 2005, as well as court documents associated with those arrests, list the decedent's address as either 48 Howe Street, New Haven or 358 Orange Street, New Haven.   They further argue that this, coupled with the affidavit of Davidson attesting to the fact that plaintiffs' decedent resided with her at 358 Orange Street, New Haven from some point in late 2004 until his death, evidences that his domicile was New Haven.   Defendants also argued that the telephone number consistently given by plaintiffs' decedent during the period of late 2004 through March of 2005 was the telephone number associated with Davidson's apartment at 358 Orange Street, New Haven.

The court is not persuaded that this evidence supports the contention that plaintiffs' decedent intended to permanently change his domicile.   The court finds that the domicile of plaintiffs' decent immediately prior to his incarceration in March 2004 was Bridgeport.   The court credits the testimony of Davidson as well as the documentary evidence indicating that plaintiffs' decedent used her address as his residence and finds that he did in fact stay with her from late January 2005, as he reported to his probation officer on February 9, 2005.   It is clear, however, from Davidson's statements to the police officer on April 3, 2005 that she regarded the apartment at 358 Orange Street, New Haven as her home and not that of plaintiffs' decedent.   She had given him permission to stay there with her, which, as indicated in the police report dated April 3, 2005, the day of his death, she revoked.   More importantly, as it is the intention of plaintiffs' decedent that controls, there is a lack of any evidence to demonstrate that he intended for 358 Orange Street, New Haven to be his permanent home.

Contrary to defendants' assertion that plaintiffs' decedent abandoned his Bridgeport domicile, the plaintiffs argue that he had temporarily been residing in New Haven subsequent to his release from jail on September 3, 2004 but had remained domiciled in Bridgeport.   A careful review of all the evidence before the court supports this position.

The deposition testimony of Gail Perrone establishes that 424 Merritt Street, Bridgeport was the family home of plaintiffs' decedent.   It further establishes that, although plaintiffs' decedent resided with Perrone outside his family residence for an approximate ten-year period, he continued to receive mail there, stayed there on occasions, moved back there after he stopped residing with her, visited with their children there and considered it his permanent home.   A review of the documentary evidence supports this testimony.   All of the exhibits, with the exception of the driver's license renewal form, the appearance bond and the police reports, reference 424 Merritt Street, Bridgeport as the address of plaintiffs' decedent.   The client activity report prepared by the jail re-interview staff member on November 18, 2004 lists the address of plaintiffs' decedent as 424 Merritt Street, Bridgeport.   Perhaps more importantly, the CSSD case data record sheet dated April 3, 2005, as well as that dated March 20, 2005, upon which the defendants rely for the proposition that plaintiffs' decedent reported to the CSSD representative that his address was 358 Orange Street, New Haven, references 424 Merritt Street, Bridgeport both as his prior address and his alternate address.

Thus, the court finds that the actions of plaintiffs' decedent in informing the CSSD representative on both March 20, 2005 and April 3, 2005 that 424 Merritt Street, Bridgeport was his alternate address accords with the conclusion that he regarded that address as his permanent residence and domicile, which is both the plaintiffs' position and this court's finding.   Moreover, that record also indicates, consistent with the information contained in the probation notes, that 358 Orange Street, New Haven had been his residence for only two months.   The probation officer's notes indicate that on February 9, 2005, plaintiffs' decedent reported that he was “staying” with his girlfriend in her New Haven apartment.   Nothing in that statement connotes an intention to abandon his prior domicile and permanently remain at the New Haven address.

Moreover, the police report dated April 3, 2005, the date of his death, indicates that plaintiffs' decedent was no longer welcome at 358 Orange Street, New Haven and that he would be arrested for trespassing if he returned to that location.

Perrone further testified in her deposition that the family members of plaintiffs' decedent made his funeral arrangements at a funeral home in Bridgeport.   The affidavit of Bernard Koetsch, the funeral home director, and the death certificate further support this fact.   Death certificates are “vital records ․ admissible ․ as an exception to the hearsay rule as ‘proof of the facts required to be reported.’  “ (Citations omitted.)  In re Michaela Lee R., 253 Conn. 570, 587 n.21, 756 A.2d 214 (2000).   Koetsch attests that an individual representing himself as Patrick Riley, brother of plaintiffs' decedent, provided him with the decedent's address of 424 Merritt Street, Bridgeport.   The death certificate further indicates that Patrick Riley's address is also that of the family home located at 424 Merritt Street, Bridgeport.

Based upon all of the foregoing, the court finds that plaintiffs' decedent was a domiciliary of Bridgeport, Connecticut prior to his incarceration in March 2004 and that upon his release from jail to transitional housing and up until the date of his death, he had been temporarily residing in New Haven but had not abandoned his permanent home in Bridgeport.   Absent a showing that plaintiffs' decedent intended to abandon his family home in Bridgeport and establish a permanent residence in New Haven, he remained a domiciliary of Bridgeport at the time of his death.   As such, the Bridgeport Probate Court had jurisdiction to grant the letter of administration to the plaintiffs.   Accordingly, the plaintiffs have standing to maintain this action.

CONCLUSION

For the foregoing reasons, the defendants' motion to dismiss is hereby denied.

So ordered.

Connors, J.

FOOTNOTES

FN1. The operative complaint is plaintiffs' second revised complaint dated September 4, 2009.   The wrongful death count against the state of Connecticut was previously ordered dismissed.   That ruling is presently on appeal..  FN1. The operative complaint is plaintiffs' second revised complaint dated September 4, 2009.   The wrongful death count against the state of Connecticut was previously ordered dismissed.   That ruling is presently on appeal.

FN2. General Statutes § 45a–24 expressly provides in pertinent part that “[a]ll orders, judgments and decrees of courts of probate, rendered after notice and from which no appeal is taken, shall be conclusive and shall be entitled to full faith and credit and validity shall not be subject to collateral attack, except for fraud.”   Therefore, generally, a probate court judgment is “final and conclusive unless appealed from, and cannot be called in question by any collateral proceeding.”  Appeal of Willets, 50 Conn. 330, 338 (1882).  “Our probate courts are courts of limited jurisdiction,” however, “and therefore their decrees are not conclusive as to the fact of jurisdiction but may be collaterally attacked for want of jurisdiction.”  (Internal quotation marks omitted.)  Killen v. Klebanoff, 140 Conn. 111, 116, 98 A.2d 520 (1953).   The ground on which the defendants move to dismiss the present action does not challenge the merits of the probate court's decision to appoint the plaintiffs as co-admiistratrixes of the decedent's estate.   It instead challenges the probate court's jurisdiction to make the appointment in the first place.   Therefore, the present motion is not precluded by the rule against collateral attacks on probate court judgments..  FN2. General Statutes § 45a–24 expressly provides in pertinent part that “[a]ll orders, judgments and decrees of courts of probate, rendered after notice and from which no appeal is taken, shall be conclusive and shall be entitled to full faith and credit and validity shall not be subject to collateral attack, except for fraud.”   Therefore, generally, a probate court judgment is “final and conclusive unless appealed from, and cannot be called in question by any collateral proceeding.”  Appeal of Willets, 50 Conn. 330, 338 (1882).  “Our probate courts are courts of limited jurisdiction,” however, “and therefore their decrees are not conclusive as to the fact of jurisdiction but may be collaterally attacked for want of jurisdiction.”  (Internal quotation marks omitted.)  Killen v. Klebanoff, 140 Conn. 111, 116, 98 A.2d 520 (1953).   The ground on which the defendants move to dismiss the present action does not challenge the merits of the probate court's decision to appoint the plaintiffs as co-admiistratrixes of the decedent's estate.   It instead challenges the probate court's jurisdiction to make the appointment in the first place.   Therefore, the present motion is not precluded by the rule against collateral attacks on probate court judgments.

Connors, Susan A., J.