Elizabeth A. Bozzuto, J.

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Elizabeth A. Bozzuto, J.

BACKGROUND

Before the court is an action for annulment of marriage, brought by Robin Murdock-Meggers, as conservator for Frank G. Shields (plaintiff), against Dorothy Khiatkowski (defendant). In the complaint, the plaintiff alleges that the parties married on August 13, 2015 in Rocky Hill, Connecticut. The plaintiff further alleges that the marriage is " void or voidable" in that the plaintiff " lacked sufficient understanding, awareness, or capacity to consent to marriage." The plaintiff seeks an annulment of the marriage. The matter was tried over the course of two days. The court makes the following findings of fact, by clear and convincing evidence, based upon the more credible evidence offered at trial.

FINDINGS OF FACT

Since approximately 2006, the defendant has been a full-time caretaker for the plaintiff. In June 2015, the Department of Social Services (DSS) received a complaint from a staff member at the facility where the plaintiff received weekly dialysis reporting mistreatment of the plaintiff by the defendant. The reporter indicated that she heard the defendant say, " I hope he dies before the summer so I can sell the home" amongst other disparaging comments relative to the plaintiff.

DSS assigned the complaint to Alicea Albert (Albert), an investigative social worker for DSS, Protective Services, for investigation. This complaint was the 4th complaint received by DSS Protective Services regarding the plaintiff's care. Two of the three prior referrals were for allegations of abuse and neglect of the plaintiff by the defendant.

Albert made an initial unannounced visit to the plaintiff's home on June 4, 2015. At the time of the visit, Albert found the plaintiff and defendant in a van in the driveway. Albert stated the purpose of the visit. Albert noted that the defendant thereafter " monopolized the conversation." The defendant was familiar with Albert and/or DSS given the prior complaints investigated by the agency. On this visit, Albert was unable to meet with the plaintiff alone. The defendant was dismissive of the complaint made by the staff at the dialysis facility. During the course of the meeting, Albert found the defendant to be " overwhelmed." In response thereto, Albert offered the defendant respite care. The defendant refused the offer stating " the plaintiff wouldn't pay for it."

Although well groomed, the plaintiff appeared confused through the course of this first meeting. He repeatedly asked Albert, " Who are you? Why are you here?" The defendant responded to the plaintiff's questions and told the plaintiff that " this is the lady who wants to take your money" and " the state is trying to take all of your money." Hearing this, the plaintiff became visibly agitated. Albert testified that the plaintiff " had no clue" where he came from, what he had for breakfast or how much money he had. She further noted that the questions she posed to the plaintiff were answered by the defendant.

Albert had considerable concerns relative to the plaintiff given the plaintiff's confusion, the prior referrals, the defendant's interference with the interview and the fact that the defendant was not only the plaintiff's caregiver, but also managed the plaintiff's finances paying herself from the plaintiff's funds for the services she provided.

In furtherance of her investigation, Albert next visited the plaintiff on June 11, 2015. She attempted a face-to-face meeting, but no one responded to her knock at the door.

On her next visit, June 16, 2015, Albert brought her supervisor with her. She testified that she brought her supervisor with her because she wanted a " second set of eyes" on the plaintiff. Albert was concerned about the plaintiff given the three prior referrals to protective services and the plaintiff's state of confusion. Additionally, the defendant's behavior and reaction to Albert's first visit was of noted concern.

Upon their arrival, the plaintiff and defendant were just returning home. The plaintiff didn't understand why DSS was present, despite the fact that Albert and her supervisor explained it to him several times. The plaintiff was confused and exhibited behavior that was similar to the first visit. Albert explained to the defendant that it was a conflict of interest for her to manage the plaintiff's money, be his care provider and pay herself from the plaintiff's funds. The defendant responded that she had a contract with the plaintiff. The defendant further responded that she felt it may be necessary for her to speak with her attorney. Albert suggested that it may be appropriate for DSS to pursue the appointment of a conservator in Probate Court for the plaintiff. The defendant responded to this by stating " . . . they just want to take his money."

After this visit, Albert and her supervisor agreed that it was necessary to file a petition in the probate court for appointment of a conservator for the plaintiff. Albert testified that DSS only files petitions in probate court if they believe the person subject of their review and investigation is incompetent.

Albert visited the plaintiff again on July 9, 2015. Much of the conversation between Albert, the defendant and the plaintiff had to do with the plaintiff's finances. The plaintiff's primary treating physician concluded that the plaintiff was not capable of handling his own finances. Albert informed the defendant that DSS was going to pursue appointment of a conservator for the plaintiff in probate court. The defendant disagreed with this and became defensive. She accused the state of wanting to take the plaintiff's money. The defendant complained that DSS was " changing things" and it was going to " negatively affect her." When the plaintiff eventually became engaged in the conversation, the defendant " managed to upset the client (plaintiff) very easily." The defendant again informed Albert that she and the plaintiff have a contract, but resisted responding to any inquiry regarding the same. The defendant claimed that the plaintiff owed her money for the past eight years. Albert was informed that the plaintiff and defendant owned the residence jointly and the defendant wished to sell the property. The plaintiff, on the other hand, didn't know anything about a contract, didn't know how much income he had, didn't know he owed the defendant money and didn't know what bank he used. The defendant asked for a time frame for any probate court filing. Albert indicated she was unsure when the filing would take place. The defendant stated that she " needs to do what she has to . . ." and " will sell the house."

Consistent with her prior visits, Albert noted on this visit that the plaintiff had short- and long-term memory issues, confusion, poor vision and couldn't hear well, even with hearing aids. Albert also described the defendant consistent with prior observations, noting she was " . . . quite agitated, defensive, nervous and vague with her information." Although Albert found no risk of physical abuse, she did find the defendant to be emotionally abusive toward the plaintiff.

DSS ultimately filed the necessary papers for appointment of conservator for the plaintiff with the probate court on July 10, 2015.

On July 31, 2015 Albert spoke to the defendant and informed her that the court date for probate was August 17, 2015. The defendant again was agitated by this information and said the hearing is " too soon." She stated that she wanted to get the plaintiff a lawyer. Albert informed the defendant that the probate court would appoint a lawyer for the plaintiff.

Albert attempted to meet with the plaintiff on August 11, 2015. It was an unannounced visit. The defendant came to the door. Albert asked to see the plaintiff. The defendant was agitated and said that " it is not a good time." Albert explained she had to do a " face-to-face" visit with the plaintiff before the probate court hearing. The defendant refused and stated it wasn't a good date or time for a visit. Further, the defendant was unwilling to provide Albert with an alternative date or time. The defendant indicated that she had the letter from the probate court and informed Albert that she and the plaintiff were going to see a lawyer that day. Albert never saw the plaintiff on this visit.

Shortly before the hearing, the Probate Court appointed a lawyer, Attorney Gus Large, for the plaintiff. Attorney Large met with the plaintiff for the first time on August 12, 2015. Attorney Large testified at trial that the defendant was reluctant to allow him to meet with the plaintiff alone. She insisted on being present during the entire meeting. Attorney Large testified that it was " immediately apparent" that the plaintiff " had not a clue" as to why Attorney Large was there. The plaintiff didn't know anything about his income or personal expenses. He didn't understand what a conservator was. Attorney Large determined from this meeting that he couldn't be an advocate for the plaintiff because the plaintiff couldn't articulate what he wanted. He knew from the first meeting that it was appropriate and necessary to seek from the probate court the appointment of a guardian ad litem for the plaintiff. Attorney Large testified at trial that it was his impression from his meetings with the plaintiff that the plaintiff " . . . couldn't have understood that he was getting married" on August 13, 2015.

Thursday, August 13, 2015 was Albert's 7th and last visit with the plaintiff. Albert testified that DSS typically does one unannounced visit. For this case, Albert made seven visits to the plaintiff's home. On this visit, Albert found the plaintiff confused, unable to answer questions, didn't know who Albert was despite the many visits and wasn't cognizant of what was going on. Albert testified that the plaintiff's hearing and vision were very bad. She further noted that the plaintiff had been going to dialysis three times per week for seven years. Albert found the plaintiff " very isolated" and " very ill." Unbeknownst to Albert, on the same day of her 7th and last visit to the plaintiff, the plaintiff and defendant had been married by a Justice of the Peace in Rocky Hill, Connecticut. Neither the plaintiff nor the defendant mentioned to Albert that they had been married or were about to get married.

Albert testified at trial that from her observations and investigation, the plaintiff didn't have the faculties to understand the " concept of marriage." She testified, " I could have married him that day."

Sometime after the August 13, 2015 visit, Albert received a phone call from a woman by the name of Melissa Hudson (Hudson). The caller indicated that the defendant was at her office seeking to obtain the plaintiff's medical records. The office resisted providing the records to her because the defendant was not his power of attorney and otherwise lacked authority to obtain the plaintiff's medical records. Hudson informed Albert that the defendant then told her " on Wednesday she and client (plaintiff) got hitched by a JP." Hudson thought she misunderstood what the defendant was saying and asked the defendant if they got married. The defendant confirmed that they did get married. After receiving this information from Hudson, Albert notified Attorney Large, the plaintiff's probate court appointed attorney. Attorney Large doubted there was any truth to the statement, but let Albert know he intended to visit the plaintiff " before the hearing on Tuesday" and would inquire.

The Justice of the Peace (JP) who performed the ceremony testified at trial. The JP testified that, through the car door, the plaintiff asked him " Is this going to be a wedding?" The JP responded " yes" and asked if the plaintiff would like to proceed. The Plaintiff responded " yes." The JP proceeded to marry the plaintiff and defendant.

The clerk from the Rocky Hill Town Hall who signed the marriage certificate testified at trial. The clerk, also addressing the plaintiff through the car window, found the plaintiff to be " a little agitated." The clerk testified that the plaintiff asserted as a question, " This is not a marriage?" The defendant answered the plaintiff by simply stating " This is civil." The clerk testified that the plaintiff seemed like " he was falling asleep."

The initial probate hearing on DSS's request for appointment of a conservator for the plaintiff was on Tuesday, August 18, 2015, just five days after the marriage ceremony. Before the hearing commenced, the defendant walked in and threw a paper down on the table toward the Judge and said, " I had to do this to protect myself." Everyone present, including Albert, Attorney Large, Attorney Robin Murdock-Meggers and the Judge looked at the paper and discovered that it was a marriage certificate. The judge was " shocked" and stated " This is a game changer." The judge suggested to the defendant that she get a lawyer. The defendant responded, " I was forced to do this."

The probate court granted DSS's petition and appointed a temporary conservator, Attorney Robin Murdock-Meggers, for the plaintiff's person and estate. Attorney Large requested that the court appoint the plaintiff a guardian ad litem in that the plaintiff did not appear to fully understand what was going on. The probate court granted the request and appointed Attorney Dan Dwyer as the plaintiff's guardian ad litem.

Thereafter, on September 10 and September 17, the probate court conducted a hearing. Both the plaintiff and defendant were represented by counsel in the probate action. In addition to his lawyer, the plaintiff was also represented by Attorney Dwyer as his guardian ad litem.

The probate court found, by clear and convincing evidence, that the plaintiff was " . . . unable to receive and evaluate information or make or communicate decisions to such an extent that the (plaintiff) is unable, even with appropriate assistance, to perform the functions inherent in managing his affairs . . ." The court further found, " The respondent is a 90-year-old gentleman who suffers from kidney failure, glaucoma, worsening macular degeneration, diabetes, high blood pressure and heart issues. He has received 24/7 care from Dorothy Kwaitkowski for the past eight years. He began to exhibit lapses in memory 1/2-2 years ago. He appears to have little understanding of his finances. The evidence disclosed that the respondent and Ms. Kwaitkowski were married on August 13, 2015, just days before the initial hearing in this matter. However, he is reportedly confused about this 'civil union.' During long portions of these hearings, Mr. Shields was asleep and when he participated, at times, he appeared confused as to these proceedings."

The probate court ultimately concluded by clear and convincing evidence that the plaintiff was incapable of managing his own affairs or caring for himself. A conservator was appointed for him. Amongst other duties and responsibilities directed by the court, the conservator was encouraged to " investigate the validity of the marriage certificate in light of the respondent's confusion and inability to understand the proceedings."

Thereafter, DSS closed its case since a conservator had been appointed to protect the plaintiff's interests. DSS referred the matter to the State's Attorney's office for criminal investigation. The status of that investigation was not made known to the court.

This action for annulment was commenced by the plaintiff's conservator on January 5, 2016. On that same date, the defendant brought an action against the plaintiff, her then-spouse, for breach of contract, failure to pay wages and unjust enrichment, amongst other claims. That matter still pends.

LAW

Under Connecticut law, the term marriage is defined statutorily. Specifically, General Statutes § 46b-20(4) provides: " 'Marriage' means the legal union of two persons."

" To warrant the annulment of a marriage, the cause must be such as goes to the essence of the marriage contract. Consent of the participants is a necessary condition to the creation of a valid marriage relationship, and there must be an intention of the parties to enter into the marriage status." Bernstein v. Bernstein, 25 Conn.Supp. 239, 240, 201 A.2d 660 (1964). " The law is clear that mutual consent is essential to a valid marriage." Schibi v. Schibi, 136 Conn. 196, 198, 69 A.2d 831 (1949). " [W]hen only one party consents to the contract there is no marriage." Bernstein v. Bernstein, supra, 25 Conn.Supp. 241.

The test of mental capacity is whether the impaired party, at the time of the marriage, " possessed understanding sufficient to comprehend the nature, extent, and consequences" of entering into the marriage. Nichols v. Nichols, 79 Conn. 644, 657, 66 A. 161 (1907); L. Truax, LexisNexis Practice Guide: Connecticut Family Law (2017) § 1.10[3]. " Under general contract principles, a contract entered into by a party who lacks the mental capacity to consent to that contract is voidable, not void." L. Truax, supra, § 1.10[3]; see also Nichols v. Nichols, supra, 79 Conn. 657.

" A petition for the annulment of a marriage on th[e] ground [of lack of mutuality of consent] requires of the court hearing it great caution and demands clear proof." Davis v. Davis, 119 Conn. 194, 203, 175 A. 574 (1934). With regard to the application of the clear and convincing evidence standard of proof, the Connecticut Supreme Court, in applying this standard, stated that, " [t]he burden of proof under the clear and convincing evidence standard is sustained if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." (Internal quotation marks omitted.) Correia v. Rowland, 263 Conn. 453, 475 n.22, 820 A.2d 1009 (2003), citing Miller v. Commissioner of Correction, 242 Conn. 745, 794, 700 A.2d 1108 (1997).

DISCUSSION

The estate of the plaintiff seeks to have this court annul the marriage between the plaintiff and defendant. The sole issue before this court is whether the plaintiff had the requisite capacity to enter into the contract of marriage on August 13, 2015, fully understanding all the attendant consequences and obligations of the same.

The evidence surrounding the plaintiff's capacity on or about the date of the marriage is plentiful. Every disinterested witness that came before the court described the plaintiff in a consistent manner. The plaintiff was confused, without memory, opposed to marriage, in ill-health and unable to understand what was going on around him. There is little, if any, evidence before the court that supports a finding that the plaintiff " possessed understanding sufficient to comprehend the nature, extent and consequences" of marriage.

Considering the more reliable and consistent evidence before the court, the court finds, by clear and convincing evidence, that the plaintiff lacked the mental capacity to knowingly enter into the union of marriage on August 13, 2015. Given the plaintiff's incapacity at the time he entered into the marriage, the court finds the marriage between the plaintiff and defendant void ab initio. The plaintiff prevails on the complaint and the prayer for relief is granted. The marriage between the plaintiff and defendant is hereby annulled.

SO ORDERED.