Opinion
No. CV 04 4000986
November 30, 2004
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR INJUNCTION
"A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law." (Internal quotation marks omitted.) Kelo v. New Haven, 268 Conn. 1, 89, 843 A.2d 500 (2004). In the present action, the plaintiff has failed to allege and prove that he will sustain irreparable harm if the court does not enjoin the Probate Court from proceeding with the scheduled December 1, 2004 hearing on contempt and sanctions. Furthermore, the plaintiff has failed to indicate the absence of an adequate remedy at law. Pursuant to General Statutes § 45a-186, the plaintiff can appeal to the Superior Court if he is aggrieved by the Probate Court's order after the December 1, 2004 proceeding occurs.
General Statutes § 45a-186 provides in relevant part: "Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the Superior Court."
It is also noted that notwithstanding the plaintiff's appeal to the Superior Court, the Probate Court's June 16, 2004 order is still in effect. The Supreme Court has held that "the mere taking of an appeal from a probate decree does not in and of itself vacate or suspend the decree . . . [T]he probate decree appealed from continues `in full force' until the appellate tribunal otherwise determines." (Citations omitted; internal quotation marks omitted.) Kerin v. Stangle, 209 Conn. 260, 265, 550 A.2d 1069 (1988).
Moreover, the Probate Court has the inherent power to find the plaintiff in contempt pursuant to General Statutes § 51-33. As such, the plaintiff's argument that the Probate Court is abusing its discretion by hearing the motion for contempt and sanctions is without merit.
General Statutes § 51-33 provides: "Any court, including a family support magistrate, may punish by fine and imprisonment any person who in its presence behaves contemptuously or in a disorderly manner; but no court or family support magistrate may impose a greater fine than one hundred dollars or a longer term of imprisonment then six months or both."
For the foregoing reasons, the plaintiff's motion for injunctive relief is denied.
Riley, J.