Opinion
No. FA 09 4010779 S
January 7, 2010
MEMORANDUM OF DECISION (RE MOTION TO DISMISS COUNTERCLAIM #123)
In this case the plaintiff brought an action seeking a legal separation from the defendant.
The defendant, through his conservators, filed a cross-complaint seeking a dissolution of their marriage. The plaintiff has moved to dismiss the cross-complaint on the grounds that an involuntarily conserved person's conservators may not bring a dissolution action on their ward's behalf. The Court agrees.
In this case the Probate Court for the District of Tolland, on March 17, 2009, found that the defendant, Donald Luster, suffers from senile dementia and is incapable of caring for himself. Said Probate Court appointed Jeannine Childree, a daughter of the parties as Involuntary Conservator of the person. It also appointed a second daughter, Jennifer Dearborn, as Involuntary Conservator of the estate. The defendant makes his home with Jeannine Childree.
While there appears to be a split of authority on this issue, the majority view at least in jurisdictions which do not have a statute authorizing a conservator to bring a dissolution of marriage action, is that there is an inherent inability to know that the conserved person would have wanted to end the marriage and that such a decision is intensely personal.
A full discussion of this issue is found in 32 ALR 5th 673 Divorce — Incompetent Spouse.
The few Connecticut cases on point lead this Court to conclude that this state would likely follow the majority of other jurisdictions.
In Zullo v. Ocalewski, Judicial District of New Haven, April 2, 2007, Frazzini, J. [ 43 Conn. L. Rptr. 201], the Court held the conservator may not bring a divorce action. Also, see Cottrell v. CB T, 175 Conn. 257 (1978), where the Court held an incompetent person may not bring suit in her own behalf.
In Ridgeway v. Ridgeway, 180 Conn. 533 (1980), our Supreme Court held that even an insane person has legal capacity to sue or be sued, provided he has not been adjudicated an incompetent and placed under a guardianship.
This Court, in Reale v. Reale, Judicial District of Tolland, 26 Conn. L. Rptr. 31 (Klaczak, J.), addressed the authority of an involuntary conservatorship compared to a voluntary one.
After reviewing these cited authorities, this Court reaches the conclusion that the conservators of the defendant cannot bring a cross-complaint in this case and grants the Motion to Dismiss the Counterclaim.