author: ALVORD, J.

text:
    SIN HANG LEE v. BRENNER, SALTZMAN AND WALLMAN, LLP, ET AL.
    (AC 31919)
    Lavine, Alvord and Schaller, Js.
    Argued February 18 —
    officially released April 26, 2011

      Anthony J. Musto, for the appellant (plaintiff).

      James R. Fiore and James P. Sexton, with whom, on the brief, was Anthony Nuzzo, Jr., for the appellees (defendants).
   Opinion

ALVORD, J.

The plaintiff, Sin Hang Lee, appeals from the summary judgment rendered by the trial court in favor of the defendants, Alice Mick, Stephen Saltzman, David Schaefer and Brenner, Saltzman & Wallman, LLP, on the ground that his action is barred by General Statutes § 52-577. On appeal, the plaintiff claims that summary judgment was improper because there are genuine issues of material fact as to whether the continuous representation doctrine and the continuing course of conduct doctrine tolled the statute of limitations. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. The plaintiff was a member of Pathology Associates and Consultants, P.C. (corporation). During January, 1997, the defendants were retained to revise the corporation’s existing employment and stockholder agreements, in the context of adding another physician shareholder to the practice. The defendants drafted and distributed the new employment and stockholder agreements (new agreements) in June, 1997. Accompanying the agreements was a cover letter stating that the drafts could be “tailor[ed]” to “your specific situation after all of you have had a chance to look [them] over” (1997 cover letter). The letter also indicated that the defendants were available to answer questions regarding the new agreements. The plaintiff acknowledged in his deposition that he did not read the new agreements, nor did he speak to his colleagues or to any of the defendants regarding the same, but, nonetheless, he executed the new agreements on May 6, 1998.

Five years later, on May 15, 2003, the corporation discharged the plaintiff, allegedly without cause. The plaintiff commenced this action against the defendants on March 23, 2006. The three count complaint alleged legal malpractice, breach of fiduciary duty and negligent misrepresentation by the defendants for, inter alia, failure to disclose material changes between the former agreements and the new agreements, and failure to advise the plaintiff to consult with his own counsel prior to executing the new agreements. The material change at issue alleged in the plaintiffs complaint is that, prior to the revisions, the employment agreements provided that members of the corporation could be discharged only for cause, but after the revisions, the new agreements allowed members to be discharged without cause. In their answer, the defendants deny that they ever represented the plaintiff, contend that they represented only the corporation and assert a statute of limitations defense as to all counts of the complaint.

On April 30,2009, the defendants moved for summary judgment arguing that the plaintiffs claim was time barred by the statute of limitations pursuant to § 52-577. Attached to their motion was an affidavit from Mick stating that only the corporation retained the defendant law firm, that none of the defendants ever represented the plaintiff personally in any manner and that the process of revising the agreements concluded on May 6, 1998, when the new agreements were executed. The plaintiff objected to the motion, arguing that the continuous representation and continuing course of conduct doctrines tolled the statute of limitations. Appended to his objection, the plaintiff included copies of (1) deposition excerpts, (2) the 1997 cover letter, (3) a memorandum from the defendants addressed to the corporation, dated August 18, 2000 (2000 memorandum), and (4) a letter from the corporation’s president addressed to the plaintiff dated May 5, 2003 (2003 letter), in which the president indicated that there would be a special meeting to consider the termination of the plaintiffs employment to which the corporation would bring its counsel, the defendants, and thus the plaintiff “should feel free to bring legal counsel ... if [he] so choose[s].”

After hearing the arguments of the parties, the court granted the motion for summary judgment finding no genuine issue of material fact in dispute as to whether the plaintiffs action was barred by § 52-577. Specifically, the court found that the evidence submitted showed that all of the tortious acts and omissions that the defendants allegedly engaged in occurred on or before May 6,1998, when the agreement was executed. Thus, the court concluded that the plaintiff commenced the action well outside of the three year statute of limitations prescribed by § 52-577. The court further found, assuming without deciding that an attorney-client relationship ever existed between the parties, that there was no genuine issue of material fact introduced by the plaintiff that any relationship continued between the parties after the 1998 execution of the agreement, and thus the doctrines of continuous representation and continuing course of conduct did not toll the limitation period. This appeal followed.

Before addressing the plaintiffs specific claims, we note the well settled legal principles governing this appeal. “This court’s review of a trial court’s granting of a motion for summary judgment is plenary in nature. . . . Our task is to determine whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . . Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing . . . that the party is . . . entitled to judgment as a matter of law.” (Citations omitted; internal quotation marks omitted.) Martin v. Westport, 108 Conn. App. 710, 716, 950 A.2d 19 (2008).

“The question of whether a party’s claim is barred by the statute of limitations is a question of law, which this court reviews de novo.” (Internal quotation marks omitted.) Certain Underwriters at Lloyd’s, London v. Cooperman, 289 Conn. 383, 407-408, 957 A.2d 836 (2008). In the present case, the occurrences that triggered this statute of limitations were the defendants’ alleged acts and omissions leading to the plaintiffs May 6, 1998 execution of the new agreements. The plaintiff did not serve his complaint on the defendants until March 23, 2006. Accordingly, we agree with the trial court that the statute of limitations had expired when the plaintiff served his complaint. The plaintiffs complaint may survive, therefore, only if the statute of limitations was tolled.

I

The plaintiff first argues that a genuine issue of material fact exists as to whether the statute of limitations was tolled by the continuous representation doctrine. “[A] plaintiff may invoke the [continuous representation] doctrine, and thus toll the statute of limitations, when the plaintiff can show: (1) that the defendant continued to represent him with regard to the same underlying matter; and (2) either that the plaintiff did not know of the alleged malpractice or that the attorney could still mitigate the harm allegedly caused by that malpractice during the continued representation period.” (Emphasis in original.) DeLeo v. Nusbaum, 263 Conn. 588, 597, 821 A.2d 744 (2003).

In order to show that the complaint was served within the appropriate statute of limitations, the plaintiff would have had to demonstrate that the defendants represented him individually with regard to “the same underlying matter”; id.; through March, 2003. The plaintiff produced only two pieces of evidence to support his claim that the defendants continuously represented him after May 6, 1998: (1) the 2000 memorandum addressed to the corporation, which, even if it demonstrated continuous representation, would not toll the three year statute for a sufficient period of time to allow the 2006 action and (2) the 2003 letter informing the plaintiff that he might bring his own counsel to a shareholder meeting, a letter to which the defendants were not parties It is impossible to conclude that the defendants represented the plaintiff, in any capacity, between 1998 and 2003, notwithstanding that they sent the 2000 memorandum to the corporation and were mentioned in the 2003 letter. See Bagoly v. Riccio, 102 Conn. App. 792, 798, 927 A.2d 950, cert. denied, 284 Conn. 931, 934 A. 2d 245 (2007). The continuous representation doctrine, therefore, is not available to the plaintiff. Accordingly, the plaintiffs first claim fails.

II

The plaintiffs second claim is that a genuine issue of material fact exists as to whether the statute of limitations was tolled in this case by the continuous course of conduct doctrine. “The question of whether a party’s claim is barred by the statute of limitations is a question of law, which this court reviews de novo. . . . The issue, however, of whether a party engaged in a continuing course of conduct that tolled the running of the statute of limitations is a mixed question of law and fact. . . . We defer to the trial court’s findings of fact unless they are clearly erroneous. . . .

“[Section] § 52-577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues. . . . Nonetheless, [w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed. . . . [I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such wrong. . . . Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act. . . . Thus, there must be a determination that a duty existed and then a subsequent determination of whether that duty is continuing.” (Citation omitted; internal quotation marks omitted.) Stuart v. Snyder, 125 Conn. App. 506, 510-11, 8 A.3d 1126 (2010).

“There is no tolling of statutes of limitationfs] in either tort or contract actions for the failure of an attorney to tell a client that a document drafted by the attorney could be inaccurate because, once the representation of the client is complete and the document executed, any warning would be ineffective. . . . The doctrine of continuing course of conduct as used to toll a statute of limitations is better suited to claims where the situation keeps evolving after the act complained of is complete, such as medical malpractice, rather than one where the situation cannot change, such as legal malpractice arising from negligent drafting of the written word.” (Citation omitted.) Sanborn v. Greenwald, 39 Conn. App. 289, 297-98, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995).

With regard to the continuing course of conduct doctrine, our review is informed by our decision in Sanborn v. Greenwald, supra, 39 Conn. App. 289. In Sanborn, the defendant attorney had drafted a modification to a divorce judgment, the modification was approved by the court in 1985, and, with the exception of testifying at a contempt proceeding, the defendant had no other contact with the plaintiff, who had hired another attorney. Id., 290-92. Approximately seven years after the court approved the modification, the plaintiff served the complaint. Id., 293-94. This court concluded that the continuing course of conduct doctrine did not apply because there was no continuing duty owed to the plaintiffs after the drafting and approval of the modification where the defendant did not engage in any affirmative conduct initiated by him after 1985, made no promises after the initial drafting that he would perform tasks in the future, had no knowledge that the drafting was negligent and was not capable of mitigation once the document was executed. Id., 297-98.

We agree with the trial court that, analogous to San-born, in the present case, “the plaintiff has not produced any evidence of an evolving situation of the kind that the continuing course of conduct doctrine is meant to address.” The plaintiff offered the 1997 cover letter, the 2000 memorandum and the 2003 letter, none of which suggests a continuing duty owed by the defendants to the plaintiff, and each fails to raise any genuine issue of material fact as to whether the statute of limitations was tolled by the continuing course of conduct doctrine. Indeed, the record is bereft of any support for the plaintiffs contention that the defendants owed a continuing duty to the plaintiff after 1998 such that the continuing course of conduct doctrine would toll the statute of limitations. Accordingly, the court properly granted the defendants’ motion for summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The individual defendants all are attorneys with the firm of Brenner, Saltzman & Wallman, LLP.

       General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       The fourth revised complaint is the operative complaint and was fitted on June 7, 2007.

         The plaintiff has not contested the finding of the trial court regarding negligent misrepresentation.

       With regard to the continuous representation doctrine, the court made the following observations: (1) with the exception of the 2000 memorandum and the 2003 letter, the other evidence produced by the plaintiff focused on conduct occurring prior to the execution of the new agreements in 1998, and thus was irrelevant to the issue of a continuing duty or representation after that date; (2) even if the 2000 memorandum toEed the statute, it would only extend the limitations period to 2003, and accordingly was not sufficient to validate the 2006 complaint; and (3) the 2003 letter, to which the defendants were not even parties, did “not raise a triable issue of fact as to whether the defendants, if they ever personally represented the plaintiff in the drafting and execution of the employment contract that was executed in May, 1998, continued to [represent the plaintiff] through May, 2003 . . . .”
      In connection with the continuing course of conduct doctrine, the trial court, citing Sanborn v. Greenwald, 39 Conn. App. 289, 297-98, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995), concluded that this doctrine was “not suited to cases, such as the present one, which are premised solely on aEegations that an attorney neghgently drafted a document, and then faEed to warn the chent that he or she had done so.” The court found that the plaintiff faEed to meet his burden to show a continuing duty when the claims at issue arose from a contract drafted and executed some eight years before the plaintiff commenced the action.

       We also note that the 2003 letter states that “[y]ou will find enclosed with this letter a Notice of Special Meeting of the Stockholders [of the corporation] . . . at which we will consider the termination of your employment .... This Notice addresses, in part, the objections raised by your counsel to the Notice previously provided to you concerning [an earlier meeting].” (Emphasis added.)


source: Caselaw Access Project

author: BEAR, J. BORDEN, J.,

license: Public Domain

text:
    GLORIA LUSTER v. DONALD R. LUSTER ET AL.
    (AC 31907)
    DiPentima, C. J., and Bear and Borden, Js.

      Argued January 11 —
    officially released April 26, 2011

      Joseph A. Hourihan and Teresa Capalbo, for the appellants (defendants).

      Joel A. DeFelice and I. David Marder, for the appellee (plaintiff).
   Opinion

BEAR, J.

In this issue of first impression, we are called on to determine whether the involuntary conservators of a conserved person can respond to an action for legal separation filed against the conserved person by filing an answer and cross complaint seeking a dissolution of marriage on behalf of the conserved person. We answer that question in the affirmative and, therefore, reverse the judgment of the trial court dismissing this cross complaint.

Gloria Luster, the plaintiff, and Donald R. Luster, the defendant, were married on October 5, 1963. They had two daughters bom of the marriage, who are now known as Jeannine Childree and Jennifer Dearborn. At some point prior to 2009, the defendant began to suffer from senile dementia. In early 2009, Childree and Dear-born brought a proceeding in the Probate Court for the district of Tolland for involuntary representation of the defendant. On February 18, 2009, the Probate Court appointed Childree as temporary conservator of the person and Dearborn as temporary conservator of the estate of the defendant. Dearborn was given the following powers: “(1) Manage the estate, (2) Apply estate to support of conserved person, (3) Pay debts, and (4) Collect debts due.” Childree was given the following powers: “(1) General custody of [the] conserved person, (2) Establish residence, (3) Consent to medical or other professional care, counsel treatment or service, and (4) Provide for care, comfort, maintenance, take reasonable care of personal effects.”

On February 26, 2009, the plaintiff initiated suit against the defendant, who is described in the caption of her complaint as incompetent, and against Childree as conservator of his person and against Dearborn as conservator of his estate. The plaintiff alleged, inter alia, that “[s]ince October 5,1963, irreconcilable differences have occurred between the parties which [have] caused the marriage to [break down] irretrievably and there is no hope of reconciliation.” The plaintiffs claims for relief included: “1. A legal separation of the marriage. 2. Alimony, pendente lite. 3. Alimony. 4. Transfer of [the] [defendant's interest in real estate. 5. Equitable division of property.”

Also on February 26, 2009, the plaintiff filed motions for alimony pendente lite, for possession of the jointly owned premises, for payment of the family bills, and for exclusive use of the couple’s motor vehicle. On March 16, 2009, the defendants filed an answer to the complaint in which they admitted paragraphs one through seven of the complaint and made the following claims for relief: “1. Alimony Pendente Lite; 2. Alimony; 3. Attorney’s Fees Pendente Lite; 4. Attorney’s Fees; 5. Transfer of [the] plaintiffs interest in real estate; 6. Equitable division of property; and 7. Anything else the court deems fair.”

On March 17, 2009, the Probate Court found that the defendant suffered from senile dementia and was incapable of caring for himself, and it made permanent its prior temporary appointments of Dearborn and Childree. On April 1, 2009, the defendants filed a cross complaint on the official divorce complaint form (dissolution of marriage) containing allegations previously set forth in the plaintiffs complaint, which allegations the defendants had admitted in their answer. See Practice Book § 25-9. If the defendants did not have pending such a cross complaint, the plaintiff could at any time without the permission of the court withdraw her complaint, thus bringing the case to a close. On May 27, 2009, the court denied the plaintiffs and the defendant’s motions for alimony pendente lite.

On October 30, 2009, the plaintiff filed a motion to dismiss the defendants’ cross complaint “because the involuntary conservators of the [defendant’s person and estate, cannot as a matter of law, bring a divorce action on behalf of their incompetent father . . . against their mother . . . .”

On November 10, 2009, the defendants requested permission for leave to amend their cross complaint to add a claim of intolerable cruelty by the plaintiff. On November 12, 2009, the plaintiff objected to the request to amend on the basis set forth in her motion to dismiss, namely, lack of authority by the conservators to “bring a divorce action on behalf of their incompetent father.” On November 20, 2009, the defendants filed their objection to the plaintiffs motion to dismiss “because a Conservator has a right to bring a dissolution action on behalf of her Conserved Person when acting in the best interests of her Conserved Person . . .” noting that “the [p]laintiff has already factually stated that the marriage . . . has broken down [irretrievably] and there is no hope of reconciliation.”

On January 7, 2010, the court granted the plaintiffs motion to dismiss the defendants’ cross complaint. It concluded that “the conservators of the defendant cannot bring a cross complaint in this case . . . ,” On January 26, 2010, the defendants appealed from the judgment of the court dismissing the cross complaint.

We note the principles that guide us in our review of this appeal. “A motion to dismiss properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and 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.” (Emphasis in original; internal quotation marks omitted.) LaBow v. LaBow, 85 Conn. App. 746, 752, 858 A.2d 882 (2004), cert. denied, 273 Conn. 906, 868 A.2d 747 (2005). “[I]t is the burden of 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.) May v. Coffey, 291 Conn. 106, 113, 967 A.2d 495 (2009). “If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause.” (Internal quotation marks omitted.) Carrubba v. Moskowitz, 274 Conn. 533, 550, 877 A.2d 773 (2005). “[A] determination regarding a trial court’s subject matter jurisdiction is a question of law, [and therefore] our review is plenary.” (Internal quotation marks omitted.) In re Matthew F., 297 Conn. 673, 688, 4 A.3d 248 (2010).

On appeal, the defendants argue that Connecticut should recognize the right of a conserved person to maintain a dissolution of marriage action through a properly appointed involuntary conservator when such dissolution is in the best interest of the conserved person. They argue that to prohibit a conserved person from dissolving his marriage is not equitable and may deprive the conserved person of his dignity because it gives the competent spouse final control over the marriage to the exclusion of the conserved spouse even when the conserved spouse is facing physical, emotional or financial harm at the hands of the competent spouse. They further argue that there are safeguards in place to guard against involuntary conservators who act improperly in seeking to dissolve the marriage of the conserved person because the involuntary conservators still would have to sustain their burden of proof that the conserved person was entitled to a dissolution of marriage and that such dissolution was in the conserved person’s best interest.

The plaintiff, on the other hand, argues that we should not permit an involuntary conservator to maintain a dissolution of marriage action on behalf of a conserved person. She argues that the power of conservators is limited and that there are no statutes in Connecticut that would authorize an involuntary conservator to maintain a dissolution of marriage action on behalf of a conserved person. Furthermore, she argues, public policy concerns would prohibit us from concluding that involuntary conservators have such authority. If we were to agree with the defendants, the plaintiff argues, we would grant “involuntary conservators the power to, literally, bring dissolution of another’s marriage for a myriad of reasons including financial gain or personal animosity.” We conclude that the involuntary conservators in this case are not prohibited, as a matter of law, from seeking a dissolution of marriage on behalf of the defendant.

We begin by looking to the statutes that define the duties and authority of those appointed as involuntary conservators. “The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Jewish Home for the Elderly of Fairfield County, Inc. v. Cantore, 257 Conn. 531, 539, 778 A.2d 93 (2001).

“The statutory duties of a conservator are clearly defined in General Statutes § 45a-655, which delineates the duties of a conservator of the estate, and General Statutes § 45a-656, which prescribes the duties of a conservator of the person. A conservator of the estate shall manage all the estate and apply so much of the net income thereof, and, if necessary, any part of the principal of the property, which is required to support the ward and those members of the ward’s family whom he or she has the legal duty to support and to pay the ward’s debts .... General Statutes § 45a-655 (a). A conservator of the person has the duty to provide for the care, comfort and maintenance of the ward; General Statutes § 45a-656 (a) (4); and that duty shall be carried out within the limitations of the resources available to the ward, either through his own estate or through private or public assistance. General Statutes § 45a-656 (a).” (Internal quotation marks omitted.) Jewish Home for the Elderly of Fairfield County, Inc. v. Cantore, supra, 257 Conn., 539-40.

The role of a conservator of the estate and his or her relationship to the Probate Court has been explained by our Supreme Court: “In Marcus’ Appeal from Probate, 199 Conn. 524, 528, 509 A.2d 1 (1986), we discussed the role of conservators as follows: A conservator has only such powers as are expressly or impliedly given to him by statute. ... A conservator of the estate, under our law, is a person appointed by the court of probate under the provisions of [General Statutes c. 779, now c. 802h] to supervise the financial affairs of a person found to be incapable of managing his or her own affairs .... General Statutes § 45-70a (a) [now § 45a-644 (a)]. ... A conservator of an estate owes a duty of loyalty to a ward. Marshall v. Kleinman, 186 Conn. 63, 65, 438 A.2d 1196 (1982). . . .

“In Marcus’ Appeal from Probate, supra, 199 Conn. 528-29, we also discussed the relationship between conservators and probate courts, noting that, [i]n exercising [its statutory] powers, [a conservator] is under the supervision and control of the Probate Court. Elmendorf v. Poprocki, 155 Conn. 115, 118, 230 A.2d 1 (1967). . . . The [P]robate [C]ourt is a court of limited jurisdiction and has only such powers as are given it by statute or are reasonably to be implied in order to carry out its statutory powers. Prince v. Sheffield, 158 Conn. 286, 293-94,259 A.2d 621 (1969); Palmer v. Reeves, 120 Conn. 405, 408, 182 A. 138 (1935). . . . The Probate Court is under an affirmative duty to protect the assets of an incompetent’s estate. Marshall v. Kleinman, [supra, 186 Conn. 69]. . . . Finally, we stated that [t]he court, and not the conservator, is primarily entrusted with the care and management of the ward’s estate, and, in many respects, the conservator is but the agent of the court. . . . Marcus’ Appeal from Probate, supra, 529. [I]t is clear that the conservator acts under the supervision and control of the Probate Court in the care and management of the ward’s estate. Id. Under our law, the Probate Court . . . [is] under a duty to protect [the ward’s] assets, and . . . the conservatrix, as an arm of the Probate Court, [is] under the same obligation.” (Internal quotation marks omitted.) Dept. of Social Services v. Saunders, 247 Conn. 686, 707-708, 724 A. 2d 1093 (1999).

Our Supreme Court has also stated: “A conservator is a fiduciary . . . .” Marcus’ Appeal from Probate, supra, 199 Conn. 533. “[A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other.” (Internal quotation marks omitted.) Murphy v. Wakelee, 247 Conn. 396, 400, 721 A.2d 1181 (1998). “A conservator [however] has only such powers as are expressly or impliedly given to him by statute.” (Internal quotation marks omitted.) Id., 406. “The statutory duties of a conservator are clearly defined in ... § 45a-655, which delineates the duties of a conservator of the estate, and ... § 45a-656, which prescribes the duties of a conservator of the person.” Jewish Home for the Elderly of Fairfield County, Inc. v. Cantore, supra, 257 Conn. 539-40.

In determining whether the conservators in this case have the authority to maintain a dissolution action on behalf of the defendant, we are mindful of the importance of the right of access to our courts, a right shared by all people, including those declared legally incompetent. See Conn. Const., art. I, § 10. In protecting the rights of those declared legally incompetent, our Supreme Court explained: “If the plaintiff were legally incompetent to sue or his access to the courts were impaired, [a] statute could not commence the limitations period running until he regained his legal competency; otherwise, through no fault of his own, he could be barred from any redress and thus become a legally helpless and vulnerable target for any careless or malicious person. See Hobart v. Connecticut Turnpike Co., 15 Conn. 145, 148 [1842]. Furthermore, in no case does the law deprive an insane person or a person under a disability of access to the courts in order to seek redress, but a court may make provision to insure that such person’s interests are well represented. See, e.g., General Statutes §§ [17a-524] (habeas corpus), [45a-655] (conservators), [45a-132] (guardian ad litem), 52-175 (evidence) . . . .” Kirwan v. State, 168 Conn. 498, 502-503, 363 A.2d 56 (1975).

“[0]ne whose thought processes are impaired to the extent of being insane has a legal capacity to sue or be sued, provided he has not been formally adjudicated an incompetent and placed under the guardianship of another. . . . The court may, as the circumstances warrant, appoint a guardian ad litem to ensure that the interests of the person who may be incompetent are adequately protected.” (Citations omitted.) Ridgeway v. Ridgeway, 180 Conn. 533, 539, 429 A.2d 801 (1980). If, however, an incompetent person has been adjudicated as such, he may sue only through a representative.

A conserved person, like a minor, is able to pursue civil litigation only through a properly appointed representative, i.e., a conservator. “Legal disability of an incompetent is analogous to that of a minor. See Brown v. Eggleston, 53 Conn. 110, 119, 2 A. 321 (1885).” Newman v. Newman, 35 Conn. App. 449, 451 n.2, 646 A.2d 885 (1994), rev’d on other grounds, 235 Conn. 82, 663 A.2d 980 (1995). “Limitations and restrictions often may be imposed on the activities of minor children because of their lack of mature judgment. Children, like incompetents, do not have the legal capacity to bring actions in their own names, but may do so only through an authorized representative. ‘The law does not deprive a person adjudicated incompetent of access to the courts . . . rather, provision is made to ensure that such interests are well represented.’ Cottrell v. Connecticut Bank & Trust Co., 175 Conn. 257, 261, 398 A.2d 307 (1978). ‘[T]he purpose of providing representation is to ensure that the legal disability imposed will not undermine adequate protection of a ward’s interest.’ Id., 264.” Newman v. Newman, supra, 451.

“Furthermore, the general rule is well established that ‘a child may bring a civil action only by a guardian or next friend, whose responsibility it is to ensure that the interests of the ward are well represented. Cottrell v. Connecticut Bank & Trust Co., [supra, 175 Conn. 261]; Collins v. York, 159 Conn. 150, 153, 267 A.2d 668 (1970). When a guardian has been appointed to protect the interests of a child, the guardian is usually the proper person to bring an action on behalf of the child. Williams v. Cleaveland, 76 Conn. 426, 434, 56 A. 850 (1904).’ ” Newman v. Newman, 235 Conn. 82, 95, 663 A.2d 980 (1995); see Orsi v. Senatore, 230 Conn. 459, 466-67, 645 A.2d 986 (1994).

In Connecticut, there are many examples in our case law of conservators bringing suit on behalf of their wards to protect their interests. See, e.g., Murphy v. Wakelee, supra, 247 Conn. 398 (action by conservator to recover damages for former conservator’s breach of fiduciary duty); Forsyth v. Rowe, 226 Conn. 818, 820, 629 A.2d 379 (1993) (conservator sued alleging ward improperly denied Medicaid benefits); Pintavalle v. Valkanos, 216 Conn. 412, 414, 581 A.2d 1050 (1990) (conservator alleged defendant grossly negligent in serving alcohol to driver who severely injured ward); Kleinman v. Marshall, 192 Conn. 479, 480, 472 A.2d 772 (1984) (action by conservator to nullify real estate conveyance from incompetent ward to daughter); Zullo v. Ocalewski, Superior Court, judicial district of New Haven, Docket No. FA-06-4020422-S (April 2, 2007) (Frazzini, J.) (43 Conn. L. Rptr. 201) (conservator brought action seeking annulment of ward’s marriage); Garris v. Summerville Health Care Group, Superior Court, judicial district of Litchfield, Docket No. CV-01-085059-S (May 29, 2002) (DiPentima, J.) (32 Conn. L. Rptr. 262) (holding powers, duties and obligations of conservator include power to bring lawsuit).

In the present case, the plaintiff argues that there is no statute that gives the involuntary conservators the authority to pursue a dissolution of marriage action on behalf of the defendant, a conserved person, and that the defendant, as a conserved person, cannot maintain such a cause of action on his own behalf. We disagree.

General Statutes § 45a-650 (k) very clearly states: “[a] conserved person shall retain all rights and authority not expressly assigned to the conservator.” (Emphasis added.) Additionally, although a conserved person retains all of his or her unassigned rights and authority; see General Statutes § 45a-650 (k); there has been created a common-law rule that a conserved person, like a minor, does not have the legal capacity to bring a civil action in his or her own name, but must do so through a properly appointed representative, except in limited circumstances. See Lesnewski v. Redvers, 276 Conn. 526, 530, 886 A.2d 1207 (2005); Cottrell v. Connecticut Bank & Trust Co., supra, 175 Conn. 261; Newman v. Newman, supra, 35 Conn. App. 451.

Although our law does not deprive a conserved person of access to the courts, it attempts to ensure that the conserved person’s interests are represented adequately and not undermined by his or her disability. See Cottrell v. Connecticut Bank & Trust Co., supra, 175 Conn. 261; Newman v. Newman, supra, 35 Conn. App. 451; see also Newman v. Newman, supra, 235 Conn. 95; Orsi v. Senatore, supra, 230 Conn. 466-67; Williams v. Cleaveland, supra, 76 Conn. 434. Furthermore, “[a]n action for a divorce or a legal separation obviously is a civil action. . . . General Statutes § 46b-45 leaves no doubt that [a] proceeding . . . for . . . dissolution of marriage . . . shall be commenced by the service and filing of a complaint as in all other civil actions in the [S]uperior [CJourt . . . .” (Citation omitted; internal quotation marks omitted.) Fernandez v. Fernandez, 208 Conn. 329, 336-37, 545 A.2d 1036 (1988), cert. denied, 493 U.S. 958, 110 S. Ct. 376, 107 L. Ed. 2d 361 (1989).

In reviewing our statutes and relevant case law, we find nothing that would prohibit the conservators in this case from maintaining an action for dissolution of marriage on behalf of the defendant, who also is a named party and who is represented by counsel. To the contrary, § 45a-650 (k) specifically grants a conserved person all rights and authority not expressly assigned, and our case law specifically provides that a conserved person, except in limited circumstances, may not bring a civil action in his or her own name but must do so only by a properly appointed representative who will protect the rights of the conserved. See Lesnewski v. Redvers, supra, 276 Conn. 536-37; Cottrell v. Connecticut Bank & Trust Co., supra, 175 Conn. 261; Newman v. Newman, supra, 35 Conn. App. 451. Given that a conserved person, except in limited circumstances, may bring a civil action only through a properly appointed representative, such as a conservator, and that an action for dissolution of marriage is a civil action, combined with the conserved person’s retention of all rights and authority not specifically assigned, we conclude that a conservator may bring a civil action for dissolution of marriage on behalf of a conserved person.

If the legislature had wanted to restrict a conserved person’s ability to file an action for dissolution through his conservator, the legislature certainly could have done so. This conclusion is bolstered by the legislature’s specific restriction on a conserved person’s ability to marry. Pursuant to General Statutes § 46b-20a, a conserved person is not permitted to marry without the express written consent of the conservator, and the consent form must be signed and properly acknowledged by a person authorized to take acknowledgments. We can ascertain no legislative restrictions on the ability of a conserved person to seek a dissolution of marriage through a properly appointed representative.

In this case, we conclude that the defendant’s conservators have the duty and responsibility to act to protect his person and his estate. See General Statutes §§ 45a-655 and 45a-656. The record contains information about the possible impact of the plaintiffs alleged financial actions on the defendant’s circumstances and on his possible access to medical care and housing, as well as the harm he may suffer if the conservators are unable to pursue a dissolution of marriage on his behalf. We thus conclude that under the circumstances present in this case the conservators have both the duty and the authority to act to protect the interests of the defendant. If those interests best can be protected through the filing of a cross complaint seeking a dissolution of marriage, the conservators have the authority to file such an action. We therefore reverse the judgment of the trial court granting the plaintiffs motion to dismiss the cross complaint, and we remand the matter to the trial court.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

BORDEN, J.,

concurring. I agree with and join the

majority opinion. I write separately, however, to highlight several considerations that, in my view, are important to the resolution of this appeal.

First, the issue of this appeal is somewhat broader than the majority frames it. It is not limited to whether the involuntary conservators of the person and the estate of a ward can respond to an action for legal separation filed by their ward’s spouse by seeking a dissolution of the marriage; it is, instead, whether such conservators can seek a dissolution of the marriage of the ward, whether by initiating or responding to such an action. That is because the interests of the ward that may require protection are the same irrespective of the procedural posture of the case. Furthermore, this appeal involves only the narrow question of whether, as a matter of law, such conservators have the legal power, in an appropriate case, to bring an action for dissolution of their ward’s marriage. It does not involve the separate question of whether, in any given case, they may have violated their fiduciary duty to their ward by doing so.

Second, it goes without saying that the decision to end a marriage is necessarily very personal and, therefore, to be made with great caution even by the person in the marriage, let alone by one acting legally in that person’s stead. Thus, for purposes of this analysis, I focus principally on the function of the conservator of the ward’s person, as opposed to his estate. As the majority so aptly demonstrates, the conservator of the person has those duties and responsibilities expressly afforded her by the Probate Court, which by statute include the general custody of the ward, the authority to decide where the ward will live, the authority to give consent to medical and other professional care, and the duty to provide for the ward’s care, comfort and maintenance. See General Statutes § 45a-656 (a).

Implicit in these explicit duties and responsibilities is the duty to maintain the personal dignity of the ward. And, of course, as the majority demonstrates, the conservator is a fiduciary for the ward and, therefore, must always act in the ward’s best interest. Therefore, when the conservator decides, acting in that fiduciary capacity, that her ward’s best interest and personal dignity require that his marriage be dissolved, she must have the power to take appropriate legal action to accomplish that end. This implicit power is different only in degree, not in kind, from the general explicit powers over the custody, health care, care, comfort, maintenance and health of the ward that the statutes provide and, therefore, must be considered as implicit in those explicit powers. As the New Mexico Court of Appeals acknowledged: “[Marital dissolution] is only one of the many personal decisions that can and must be made on behalf of adult incompetent wards by their [conservators]. . . . [Conservators] are empowered to make decisions resulting in the giving or withholding of lifesaving medical treatment, the ward’s place of domicile, and the ward’s rights of association and consortium with other persons.” (Citation omitted.) Nelson v. Nelson, 118 N.M. 17, 20-21, 878 P.2d 335 (App. 1994).

Third, supporting this interpretation of the statutory powers of a conservator of the person is the notion of basic, fundamental fairness, expressed by our constitutional provision regarding equal access to our courts, as the majority points out. If we were to read our conservatorship statutes in the cramped fashion urged by the plaintiff, Gloria Luster, in the present case and hold that a conservator has no power to bring an action to end the marriage of her ward, we would be lodging solely in the competent spouse the power to do so. Indeed, this record demonstrates that, when the plaintiff moved to dismiss the cross complaint filed by the defendants, Donald R. Luster, Jeannine Childree, conservator of the person of Donald R. Luster, and Jennifer Dearborn, conservator of the estate of Donald R. Luster, she represented that she intended to withdraw her action for a legal separation. As it turns out, however, we were informed at oral argument in this court that she never did so, and the plaintiffs action for legal separation has continued apace in the trial court, unadorned, however, by the defendants’ cross complaint. Nonetheless, the plaintiff retains the power to withdraw her action at any time, without court approval, before judgment has been rendered; see General Statutes § 52-80; leaving the conservators remediless on their ward’s behalf.

This hardly would comport with any reasonable conception of equal access to our courts. As our Supreme Court has stated: “The law does not deprive a person adjudicated incompetent of access to the courts in order to seek redress; rather, provision is made to ensure that such interests are well represented.” Cottrell v. Connecticut Bank & Trust Co., 175 Conn. 257, 261, 398 A.2d 307 (1978); see also In re Marriage of Gannon, 104 Wn. 2d 121, 124, 702 P.2d 465 (1985) (en banc) (“[I]n these days of termination of life support, tax consequences of virtually all economic decisions, no-fault dissolutions and the other vagaries of a vastly changing society, we think an absolute rule denying authority [of a conservator to bring a dissolution action] is not justified nor in the public interest. . . . Unless this course of action is available, the competent party is vested with absolute, final control over the marriage. This is not equitable.” [Citation omitted.]).

Finally, considerations of sound policy counsel strongly for interpreting a conservator’s statutory powers so as to include the power to bring an action for marital dissolution. The Arizona Court of Appeals has stated that denying a conservator the power to bring a dissolution action “threatens to leave an incompetent spouse without adequate legal recourse against potential physical, emotional or financial abuse by the competent spouse. We believe that to hold an incompetent spouse a prisoner to physical or emotional abuse at the hands of a competent spouse by means of the bands of matrimony is untenable. Thus, the [conservator] may proceed after concluding that this is what the ward would want, basing that conclusion on what is known of the ward’s preferences and the ward’s general values regarding marriage and [dissolution] and overall manner of living.” Ruvalcaba v. Ruvalcaba, 174 Ariz. 436, 443-44, 850 P.2d 674 (App. 1993).

It is true, as the defendants’ arguments suggest, that there is the potential for a conservator to abuse her trust and bring a dissolution action for her own, rather than her ward’s, interest, particularly where, as in the present case, the conservators are family members. One can conceive, of course, of two ends of a spectrum: one end, where a conservator does so; and the other end, where the competent spouse is engaging in a course of public conduct that is humiliating to the incompetent spouse, who, because of the degree of his incompetency, may not even be aware of that course of conduct — but his personal dignity nonetheless would demand some redress. This hypothetical spectrum argues strongly for interpreting our statutes to include the power to bring a dissolution action.

In the first case — where the conservator arguably is acting in her own best interest, rather than her ward’s— there would be legal remedies available to the competent spouse, both in the Probate Court that appointed the conservator and in the Superior Court where the unjustified dissolution action would be pending. In the second case, however — where the conservator has brought a dissolution action justifiably to vindicate her ward’s personal dignity — unless she had the power to do so that personal harm would go unvindicated.

I therefore agree that the judgment of the trial court dismissing the defendants’ cross complaint should be reversed, and the case be remanded for further proceedings according to law.

       General Statutes § 45a-644 defines conserved person as “a person for whom involuntary representation is granted under sections 45a-644 to 45a-663, inclusive.”

       There are three defendants in this action: Donald R. Luster, Jeannine Childree and Jennifer Dearborn. For purposes of this opinion we will refer to Luster as the defendant and to Childree and Dearborn by their individual names or as the conservators. We will refer to all three individuals collectively as the defendants where appropriate.

       Pursuant to Rule 3.6 of the Connecticut Probate Practice Book: “Any person, legally authorized state official or private, non-profit corporation other than a hospital or nursing home whom the court finds to be able to act responsibly and capably in a fiduciary manner may be appointed conservator of the estate, conservator of the person, or both, except as limited by statute. . . .” Connecticut Probate Practice Book (4th Ed. 2000) Part II, Rule 3.6, p. 11-27.

       See footnote 11 of this opinion.

       See footnote 12 of this opinion. We note that Probate Court forms PC-363 and PC-360, which enumerate the duties and authority of a temporary conservator and conservator of the person, do not include a comma between the words “counsel” and “treatment” in the phrase “consent to medical or other professional care, counsel treatment or service . . .” unlike General Statutes § 45a-656 (a) (3).

       “It is well settled that, [factual allegations contained in pleadings upon which the case is tried are considered judicial admissions and hence irrefutable as long as they remain in the case. ... An admission in pleading dispenses with proof, and is equivalent to proof.” (Internal quotation marks omitted.) Edmands v. CUNO, Inc., 277 Conn. 425, 454, 892 A.2d 938 (2006).

       Practice Book § 25-9 provides in relevant part: “The defendant in a . . . legal separation . . . matter may file . . . one of the following pleadings
      “(2) An answer and cross complaint may be filed which denies or admits the allegations of the complaint, or which states that the defendant has insufficient information to form a belief and leaves the pleader to his or her proof, and which alleges the grounds upon which a dissolution, legal separation or annulment is sought by the defendant and specifies therein the claims for relief.”

       General Statutes § 52-80 provides in relevant part: “The plaintiff may withdraw any action so returned to and entered in the docket of any court, before the commencement of a hearing on the merits thereof. After the commencement of a hearing on an issue of fact in any such action, the plaintiff may withdraw such action, or any other party thereto may withdraw any cross complaint or counterclaim filed therein by him, only by leave of court for cause shown.”
      “The right of a plaintiff to withdraw his action before a hearing on the merits, as allowed by ... § 52-80, is absolute and unconditional. Under [the] law, the effect of a withdrawal, so far as the pendency of the action is concerned, is strictly analogous to that presented after the rendition of a final judgment or the erasure of the case from the docket. . . . Daigneault v. Consolidated Controls Corp./Eaton Corp., 89 Conn. App. 712, 714, 875 A.2d 46, cert. denied, 276 Conn. 913, 888 A.2d 83 (2005), cert. denied, 546 U.S. 1217, 126 S. Ct. 1434, 164 L. Ed. 2d 137 (2006). The court unless [the action] is restored to the docket cannot proceed with it further .... Lusas v. St. Patrick’s Roman Catholic Church Corp., [123 Conn. 166, 170, 193 A. 204 (1937)].” (Internal quotation marks omitted.) Travelers Property Casualty Co. v. Twine, 120 Conn. App. 823, 826-27, 993 A.2d 470 (2010).

       The effect of the plaintiff’s actions in the trial court has been to deny the defendant equal access to the court and to a hearing on relief that he, but not the plaintiff, seeks, solely on the basis of his incompetence. Although an action for divorce in Connecticut exists under an extensive statutory framework, it is an equitable proceeding: “While an action for divorce or dissolution of marriage is a creature of statute, it is essentially equitable in its nature. Stoner v. Stoner, 163 Conn. 345, 356, 307 A.2d 146 [(1972]). As we said in German v. German, [122 Conn. 155, 160, 188 A. 429 (1936)]: In New York State as with us, divorce, with its incident of alimony, is a creature of statute. Ackerman v. Ackerman, 200 N.Y. 72, 76, 93 N.E. 192 [1910]; Cary v. Cary, [112 Conn. 256, 258, 152 A. 302 (1930)]. It does not, however, follow that an action for divorce is one at law. The [legislature can create equitable rights and provide equitable remedies as well as it can those cognizable in the law courts. Obviously the relief given in a divorce action is not such as could be granted in a common-law court but is essentially equitable in its nature. The fact that equitable and legal rights have come to be administered by a single court does not change the nature of the decree. German v. German, supra, 162.
      “The power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage. Without this wide discretion and broad equitable power, the courts in some cases might be unable fairly to resolve the parties’ dispute . " (Internal quotation marks omitted.) Pasquarietto v. Pas

        quariello, 168 Conn. 579, 584-85, 362 A.2d 835 (1975). “The term equity denotes the spirit and habit of fairness, justness and right dealing which would regulate the intercourse [between individuals]. Black’s Law Dictionary (6th Ed. 1990).” (Internal quotation marks omitted.) Jacobs v. Fazzano, 59 Conn. App. 716, 729, 757 A.2d 1215 (2000).

       The plaintiff concedes that a conserved person is not capable of maintaining an action for dissolution on his or her own behalf.

       The duties of the conservator of the estate are defined in General Statutes § 45a-655, which provides in relevant part: “(a) A conservator of the estate . . . shall, within two months after the date of the conservator’s appointment, make and file in the Court of Probate, an inventory, under penalty of false statement, of the estate of the conserved person, with the properties thereof appraised or caused to be appraised, by such conservator, at fair market value as of the date of the conservator’s appointment. Such inventory shall include the value of the conserved person’s interest in all property in which the conserved person has a legal or equitable present interest, including, but not limited to, the conserved person’s interest in any joint bank accounts or other jointly held property. The conservator shall manage all the estate and apply so much of the net income thereof, and, if necessary, any part of the principal of the property, which is required to support the conserved person and those members of the conserved person’s family whom the conserved person has the legal duty to support and to pay the conserved person’s debts, and may sue for and collect all debts due the conserved person. The conservator shall use the least restrictive means of intervention in the exercise of the conservator’s duties and authority. . . .”

       The duties of a conservator of the person are established pursuant to General Statutes § 45a-656, which provides in relevant part: “(a) The conservator of the person shall have the duties and authority expressly assigned by the court pursuant to section 45a-650, which duties and authority may include: (1) The duty and responsibility for the general custody of the conserved person; (2) the authority to establish the conserved person’s residence within the state, subject to the provisions of section 45a-656b; (3) the authority to give consent for the conserved person’s medical or other professional care, counsel, treatment or service; (4) the duty to provide for the care, comfort and maintenance of the conserved person; and (5) the duty to take reasonable care of the conserved person’s personal effects.
      “(b) In carrying out the duties and authority assigned by the court, the conservator of the person shall exercise such duties and authority in a manner that is the least restrictive means of intervention and shall (1) assist the conserved person in removing obstacles to independence, (2) assist the conserved person in achieving self-reliance, (3) ascertain the conserved person’s views, (4) make decisions in conformance with the conserved person’s reasonable and informed expressed preferences, (5) make all reasonable efforts to ascertain the health care instructions and other wishes of the conserved person, and (6) make decisions in conformance with (A) the conserved person’s expressed health care preferences, including health care instructions and other wishes, if any, described in section 19a-580e, or validly executed health care instructions described in section 19a-580g, or (B) a health care decision of a health care representative described in subsection (b) of section 19a-580e, except under a circumstance set forth in subsection (b) of section 19a-580e. The conservator shall afford the conserved person the opportunity to participate meaningfully in decision-making in accordance with the conserved person’s abilities and shall delegate to the conserved person reasonable responsibility for decisions affecting such conserved person’s well-being. . . .”

       “Article first, § 10, of the Connecticut constitution provides: ‘All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.’ We have interpreted article first, § 10, as a provision protecting access to our state’s courts . . . .” Moore v. Ganim, 233 Conn. 557, 573, 660 A.2d 742 (1995).

       Our Supreme Court has recognized various exceptions to the common-law rule that a conserved person cannot initiate in his or her own name a civil action or an appeal from an order of the Probate Court. See, e.g., Lesnewski v. Redvers, 276 Conn. 526, 537, 886 A.2d 1207 (2005) (appeal may be brought by attorney representing conserved person); Cottrell v. Connecticut Bank & Trust Co., supra, 175 Conn. 265 (appeal maybe brought by next friend); Newman v. Newman, supra, 235 Conn. 82 (minor represented by counsel may appeal without guardian or next friend). Such exceptions are not relevant to this case because the conservators of the defendant are parties to the case. Additionally, the defendant is a named party and he is represented by counsel.

       Appellate courts of other states also have concluded that a guardian or conservator may institute and defend dissolution of marriage suits. See, e.g., Hopson v. Hopson, 257 Ala 140, 141, 57 So. 2d 505 (1952); Campbell v. Campbell, 242 Ala. 141, 142-43,5So. 2d 401(1941),rehearing denied,January 15, 1942; Ruvalcaba v. Ruvalcaba, 174 Ariz. 436, 445-46, 850 P.2d 674 (App. 1993); In re Salesky, 157 N.H. 698,704,958 A.2d 948 (2008); Nelson v. Nelson, 118 N.M. 17, 22, 878 P.2d 335 (App. 1994); In re Marriage of Gannon, 104 Wn. 2d 121, 124, 702 P.2d 465 (1985) (en banc). Other appellate courts, however, have denied permission. See, e.g., In re Marriage of Drews, 115 Dl. 2d 201, 205, 503 N.E.2d 339 (1986), cert, denied, 483 U.S. 1001, 107 S. Ct. 3222, 97 L. Ed. 2d 729 (1987); In re Marriage ofDenowh, 317 Mont. 314, 319,78 P.3d 63 (2003), rehearing denied, October 23,2003; Murray v. Murray, 310 S.C. 336, 342, 426 S.E.2d 781 (1993); Samis v. Samis, 189 Vt. 434, 22 A.3d 444 (2011).
      For a general overview of this topic, see also D. Mills, “But I Love What’s-His-Name: Inherent Dangers in the Changing Role of the Guardian in Divorce Actions on Behalf of Incompetents,” 16 J. Am. Acad. Matrim. Law. 527 (2000); V. Martinez, “Family Law — New Mexico Expands the Power of a Guardian to Include the Right to Initiate and Maintain a Divorce Action on Behalf of the Guardian’s Incompetent Ward: Nelson v. Nelson, [118 N.M. 17, 878 P.2d 335 (App. 1994)],” 25 N.M. L. Rev. 295 (1995); K. Metzmeier, “The Power of an Incompetent Adult to Petition for Divorce Through a Guardian or Next Friend,” 33 U. Louisville J. Fam. L. 949 (1994^-1995); annot., “Power of Incompetent Spouse’s Guardian or Representative to Sue for Granting or Vacation of Divorce or Annulment of Marriage, or to Make Compromise or Settlement in Such Suit,” 32 A.L.R.5th 673 (1995).

       In the present case, both the conservator of the person and of the estate of the ward, Donald R. Luster, are named as defendants, and both brought the cross complaint that is at issue. That is appropriate because an action seeking to end a marriage, whether by judgment of dissolution or legal separation, ordinarily involves, as this case does, both personal and property considerations. I can conceive, however, of a case in which neither the ward nor the spouse has any income or property interests to be determined by the court, in which case only the conservator of the person would likely be the appropriate party on the ward’s behalf.
      Furthermore, it is important to note that this case involves involuntary conservators appointed for their ward, who suffers from senile dementia. It is conceivable that, in the case of a voluntary conservatorship, the ward might have the personal capacity to make the decision of whether to seek to end his or her marriage. See R. Folsom & G. Wilhelm, Connecticut Estates Practice: Incapacity and Adoption (2d Ed. 1991) § 2:5 (appointment of voluntary conservator does not involve finding of ward’s incapacity); General Statutes § 45a-650 (appointment of involuntary conservator requires finding that ward incapable of managing affairs or caring for himself).

       I include in this analysis the power to bring an action for legal separation, as opposed to an action for dissolution. I use the term “dissolution,” rather than “dissolution or legal separation,” only for the purposes of simplicity because the only difference between the two is that, upon a judgment of legal separation the parties are not free to remarry; see General Statutes § 46b-67 (b); until, of course, one of them petitions the court to convert the legal separation into a dissolution. See General Statutes § 46b-65 (b).


author: PER CURIAM.

text:
    JAMES VANICKY v. SUSAN VANICKY
    (AC 32012)
    DiPentima, C. J., and Lavine and Alvord, Js.

      Submitted on briefs March 11 —
    officially released April 26, 2011

      Sandi B. Girolamo and Pamela M. Magnano filed a brief for the appellant (defendant).

      Stephanie M. Weaver filed a brief for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, Susan Vanicky, appeals from the judgment of the trial court dissolving her marriage to the plaintiff, James Vanicky. She claims that the court abused its discretion by (1) awarding attorney’s fees to the plaintiff and (2) allowing the plaintiff to retain a piece of unimproved land at 42 Ballyhock Road in West Cornwall (property). We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the defendant’s appeal. The parties were married on August 8, 1998, in Litchfield. There are no minor children issue of the marriage. The plaintiff commenced this action seeking dissolution of the marriage alleging irretrievable breakdown. The court heard testimony over two days, December 3 and 4, 2009. In its written decision, issued on February 4, 2010, the court stated that it “listened to and observed the witnesses and reviewed the exhibits. In addition, the court has carefully considered the criteria set forth in General Statutes §§ 46b-62, 46b-81 and 46b-82, in reaching the decision reflected in the orders . . . The court found that the plaintiff, who had a high school diploma, earns approximately $47,000 annually as a laborer for the town of Cornwall, as well as “some money” from seasonal mowing and landscaping, while the defendant, who holds a master’s degree, earns approximately $71,000 annually as a teacher, as well as “a small additional amount” from gardening.

The court further concluded that the parties generally maintained their own separate bank accounts and credit cards, and that neither party owned any real estate at the time of their marriage. The only real estate acquired dining the parties’ marriage was the property, which was gifted to the plaintiff by John Goodrich. The court stated that “Goodrich credibly testified that the transfer [of the property] was not intended to include the defendant.” The court also discussed the parties’ allegations of infidelity, and found that the plaintiff credibly denied any extramarital affairs, while the defendant’s denial was not credible. The court acknowledged that the defendant’s credibility as to her own financial position and her challenge to the plaintiffs financial position was undermined by her failure to report almost $30,000 in assets on her financial affidavit.

In light of these findings, the court ordered, inter alia, judgment of dissolution and that each party retain his or her own assets, debts, automobiles and retirement accounts. On appeal, the defendant challenges the court’s additional orders that she pay the plaintiff $5000 in attorney’s fees and that the plaintiff retain sole ownership of the property.

“[T]he standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. ” (Internal quotation marks omitted.) Tuckman v. Tuckman, 127 Conn. App. 417, 420-21, 14 A.3d 428 (2011).

General Statutes § 46b-62 authorizes the trial court to order payment of attorney’s fees in dissolution actions. “Whether to allow counsel fees [under §§ 46b-62 and 46b-82], and if so in what amount, calls for the exercise of judicial discretion. ... An abuse of discretion in granting counsel fees will be found only if [an appellate court] determines that the trial court could not reasonably have concluded as it did.” (Internal quotation marks omitted.) Kunajukr v. Kunajukr, 83 Conn. App. 478, 489, 850 A.2d 227, cert. denied, 271 Conn. 903, 859 A.2d 562 (2004).

With respect to the property award, “[t]rial courts are empowered to deal broadly with property and its equitable division incident to dissolution proceedings.” (Internal quotation marks omitted.) Martin v. Martin, 99 Conn. App. 145, 154, 913 A.2d 451 (2007). Section 46b-81 (a) provides in relevant part: “At the time of entering a decree annulling or dissolving a marriage . . . the Superior Court may assign to either the husband or wife all or any part of the estate of the other . . . .” Under § 46b-81 (c) the court must consider the same factors considered in the award of attorney’s fees under §§ 46b-62 and 46b-82, and “[t]he court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

In reaching its decision in the present case, the court properly considered the credibility of the parties, the evidence before it and the criteria set forth in the relevant statutes. It found that the plaintiff (1) earns significantly less income as a laborer, (2) had achieved a lower level of education, (3) credibly denied infidelity and (4) acquired the property as a gift. In contrast, the court was not convinced of the defendant’s credibility as to her financial position because she failed to report almost $30,000 in assets on her financial affidavit, or in her denial of an extramarital affair. In light of the foregoing, we cannot conclude that the court abused its discretion in ordering the defendant to pay the plaintiff $5000 in attorney’s fees or in awarding the property to the plaintiff.

The judgment is affirmed.

       The court also ordered that the defendant pay expert witness fees and that the parties file a joint 2009 income tax return. Both of these orders were at issue in the defendant’s preliminary statement of the issues but have since been resolved and are not relevant to this appeal.

       General Statutes § 46b-62 provides in relevant part: “In any [dissolution of marriage] proceeding seeking relief under the provisions of this chapter ... the court may’order either spouse ... to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82 . . . .”
      The criteria set forth in § 46b-82 include, inter alia, consideration of “the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties . . . .”

       General Statutes § 46b-81 (c) provides: “In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       The court need not give each factor equal weight or recount every factor in its decision as long as the decision reflects a proper consideration and a weighing of the statutory factors. See Puris v. Puris, 30 Conn. App. 443, 449-50, 620 A.2d 829 (1993).

       The defendant claims that the court abused its discretion by awarding attorney’s fees when it did not award alimony, citing Murphy v. Murphy, 180 Conn. 376, 381, 429 A.2d 897 (1980). That case is inapposite. In the present case, alimony was not an issue before the trial court, and the court made no specific findings as to the application of the evidence to alimony. See Cook v. Bieluch, 32 Conn. App. 537, 545-47, 629 A.2d 1175, cert. denied, 228 Conn. 910, 635 A.2d 1229 (1993).
      The defendant also relies on Koizim v. Koizim, 181 Conn. 492, 501, 435 A.2d 1030 (1980), in which the court stated that “[wjhere, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so.” We are not persuaded that the holding in Koizim illustrates that the cotut abused its discretion under the facts of the present case. See, e.g., Misthopoulos v. Misthopoulos, 297 Conn. 358, 386-88, 999 A.2d 721 (2010) (awarding attorney’s fees necessary).


author: PETERS, J.

text:
    ANDREA COSTELLO v. COMMISSIONER OF DEVELOPMENTAL SERVICES
    (AC 31843)
    Robinson, Bear and Peters, Js.

      Argued February 15 —
    officially released April 26, 2011

      Lawrence W. Berliner, with whom, on the brief, was Marisa A. Mascolo, for the appellant (plaintiff).

      Darren P. Cunningham, assistant attorney general, with whom, on the brief, was Richard Blumenthal, former attorney general, for the appellee (defendant).
   Opinion

PETERS, J.

This administrative appeal challenges the propriety of a departmental finding that the applicant’s performance on intelligence tests demonstrates that the applicant is ineligible for the services provided by the department of developmental services pursuant to General Statutes §§ 1-lg and 17a-210 et seq. After a review of the administrative record, the trial court dismissed the plaintiffs appeal. We affirm the judgment of the trial court.

On September 3, 2008, the plaintiff, Andrea Costello, through her parents Barbara and William Costello, filed a complaint alleging that the defendant, the commissioner of developmental services, improperly had found that the plaintiff did not meet the statutory definition of “mental retardation” as codified in § 1-lg. After a review of the administrative record, the trial court dismissed the plaintiffs administrative appeal. The plaintiff has appealed to this court.

The comprehensive opinion of the trial court establishes the basic facts that govern this appeal. When the plaintiff was twelve years old, she filed a formal application, through her parents, to obtain access to the services provided by the department of developmental services (department). On August 8, 2007, after evaluating the plaintiffs records, the department’s eligibility unit staff denied her application. Its report stated: “Testing, and a review of the records received, indicate that during the developmental period, [the plaintiff] did not meet the criteria of [§] 1-lg, and is not eligible for the services of the [department]. . . . [The plaintiff] clearly has moderate to severe mental health issues that are affecting her cognitive ability, yet it is still above what would be considered the mentally retarded range. Her primary presenting problems are neurological and mental health, not mental retardation.”

In accordance with the plaintiffs timely request pursuant to General Statutes §§ 4-176e through 4-183, the department held an administrative hearing on September 13, 2007. In support of her claim of eligibility, the plaintiff presented the testimony of her parents and two expert witnesses, Arlette Cassidy, a clinical psychologist, and Jeffrey Landau, a psychiatrist. The department presented the testimony of H. Steven Zuckerman, a supervising psychologist who also served as its representative at the administrative hearing.

In a proposed decision dated June 10, 2008, the department’s hearing officer determined that the plaintiff was ineligible for the department’s services. The hearing officer acknowledged that the plaintiff “did exhibit deficits in her adaptive behavior during the developmental period.” She found, nonetheless, that the plaintiff did not meet the qualifications stated in § 1-lg. “[The plaintiff] did not have subaverage intellectual functioning during the developmental period. . . . [H]er intellectual functioning was above the subaverage in areas which disqualifies her from eligibility for services provided by the [department] . . . .”

The plaintiff then filed a further timely appeal to the defendant. The defendant concurred in the decision of the hearing officer, found that the plaintiff was not eligible for the department’s services and advised her of her right to appeal to the Superior Court.

The plaintiff then appealed to the trial court, which, after a hearing, dismissed her administrative appeal. The court was not persuaded either by her evidentiary challenge to the sufficiency of the evidence in support of the defendant’s decision or by her constitutional challenge to the procedural propriety of the defendant’s decision.

The plaintiff now has appealed to this court for further review of the issues that she has unsuccessfully pursued adbministratively and in the trial court. Substantively, she again claims that the decision of the defendant ignored substantial evidence in the record, was not supported by the evidence in the record and was arbitrary, capricious and illegal. Procedurally, she again alleges that the procedures utilized by the defendant were arbitrary and capricious and denied her the right to due process of law, as guaranteed by the United States and Connecticut constitutions, and to equal protection of the law, as guaranteed by the Connecticut constitution. We affirm the judgment of the trial court.

I

The plaintiff contests the sufficiency of the administrative evidence on which the defendant relied in finding her ineligible for the department’s services. “According to our well established standards, [rjeview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . [A]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts.” (Internal quotation marks omitted.) Christopher R. v. Commissioner of Mental Retardation, 277 Conn. 594, 603, 893 A.2d 431 (2006).

Before we address the plaintiff’s criticism of the administrative determinations in this case, it is useful to observe what is not at issue in this case. The plaintiff does not challenge the well established principle that it was her burden to demonstrate that she met the requirements for eligibility for the department’s services. See Matarazzo v. Rowe, 225 Conn. 314, 323, 623 A.2d 470 (1993), overruled in part on other grounds by Ross v. Giardi, 237 Conn. 550, 571, 680 A.2d 113 (1996). The plaintiff does not challenge the professional credentials of the witness on whose testimony the defendant based the determination that she had failed to do so. She does not contest the defendant’s decision to base eligibility for the department’s services on test scores rather than on a personal evaluation of an applicant’s cognitive skills. She does not claim that the tests were administered improperly. Finally, she does not assert that she was deprived of the opportunity to present evidence in support of her eligibility for the department’s services.

A review of the record at the administrative hearing to determine the plaintiffs eligibility makes it plain that the principal disagreement between the parties was the proper interpretation of the plaintiffs scores on a number of intelligence tests. It is undisputed that, as mental retardation is defined in § 1-lg, an applicant is eligible for the department’s services only if her intelligence quotient (IQ) scores are lower than seventy. See Christopher R. v. Commissioner of Mental Retardation, supra, 277 Conn. 597-98.

The plaintiffs expert witnesses were Cassidy, a clinical psychologist at the Gengras Center in West Hartford, where the plaintiff goes to school, and Landau, a psychiatrist with whom the plaintiff was in treatment for her psychological problems. Both testified that the plaintiffs full scale IQ score of sixty-six on the 2007 Weschler Intelligence Scale for Children — Fourth Edition (WISC-IV) demonstrated that the plaintiff was mentally retarded as that term is defined in § 1-lg.

The defendant’s expert witness, Zuckerman, a psychologist, testified to the contrary. In his view, because of significant internal discrepancies in the plaintiffs performance on the component parts of the WISC-IV test, the general intelligence full scale IQ score was not an accurate measurement of the plaintiffs intelligence. He opined that the plaintiffs General Ability Index of seventy-three and her score of eighty-six on the Peabody Picture Vocabulary Test more accurately portrayed her intellectual ability. Because these test scores exceeded the benchmark of seventy, in his opinion the plaintiff did not qualify for the department’s services.

The hearing officer agreed with Zuckerman’s evaluation of the evidence of record. That decision was affirmed by the defendant, and, subsequently, the trial court dismissed the plaintiffs administrative appeal.

The plaintiff maintains nonetheless that there was no substantial evidence of record to refute the testimony of her experts that her score on the WISC-IV test demonstrated her eligibility for the department’s services. Our resolution of this claim is governed by Christopher R. v. Commissioner of Mental Retardation, supra, 277 Conn. 594, in which our Supreme Court recently reviewed the factors that govern an application for access to the services provided by the department.

In Christopher R. the Supreme Court held that (1) the legislature has delegated to the defendant a gate-keeping function to determine eligibility for the department’s services; id., 616; (2) the fact that an applicant has needs that could be served by the department is not sufficient to establish his or her right to obtain services; id.; (3) evidence of an adaptive behavior deficit does not establish eligibility for the department’s services unless it is accompanied by the required statutory subaverage general intellectual ability, id., 599; and (4) in assessing intellectual ability, the defendant may rely on various intelligence tests, in whole or in part. Id., 607.

Furthermore, the Supreme Court specifically addressed as a “threshold issue” the question whether, “consistent with § 1-lg, the defendant may consider more than one general intelligence test to determine whether an applicant is mentally retarded and, therefore, is eligible for the department’s services.” Id., 606. The court concluded that, when the record contained conflicting results in tests and subtests, the defendant had the authority to consider evidence other than the general intelligence full scale IQ test score. Id., 609. That holding governs this appeal. As in Christopher R, the defendant in this case was presented with a record that documented a number of intelligence tests and internal inconsistencies between and within them. As in Christopher R., Zuckerman presented reasoned testimony, supported by an unchallenged scholarly treatise, that, in his professional opinion, established that the plaintiffs full scale IQ test score was not a reliable measure of her intellectual ability.

We recognize that, in Christopher R., additional expert testimony supported Zuckerman’s testimony, and that, in the present case, the plaintiff offered contrary expert testimony. We are not persuaded that these differences deprive Christopher R. of its authoritative force.

In sum, we agree with the trial court that, according to the tests submitted to the defendant in this case, the record establishes sufficient evidence to support the defendant’s administrative determination that the plaintiff presently is ineligible for the department’s services. Accordingly, the defendant’s adverse finding was neither arbitrary nor unreasonable.

It bears emphasis that the defendant’s decision, and our affirmance of that decision, does not bar the plaintiff from reapplying for the department’s services in the future if, as her expert witnesses predict, a future intelligence test establishes further cognitive impairment. Pursuant to § 1-lg (b), she remains eligible for the department’s services until she becomes eighteen.

II

In the alternative, the plaintiff asserts that she is entitled to a reversal of the defendant’s adverse administrative decision because he violated her constitutional right to due process by failing to give her appropriate notice of the claims against her. This contention is based on the request of the hearing officer, at the hearing to consider her eligibility for the department’s services, that the plaintiff submit psychiatric records from her hospitalization at Riverview Hospital. Concededly, the plaintiff had not been advised, in advance of the hearing, that she needed to present psychiatric or medical information in support of her eligibility claim.

The trial court rejected the plaintiffs claim without addressing its merits. The court concluded that, even if the hearing officer’s request was improper, the error was harmless because the defendant’s ruling on the merits of the plaintiffs application for the department’s services was supported by substantial evidence.

Although we agree with the court’s harmless error analysis, we are persuaded that that the record establishes an additional basis for rejection of the plaintiffs constitutional claim. The plaintiff has not called to our attention any aspect of the administrative proceedings antecedent to the eligibility hearing that would have alerted the hearing officer to the need to make a timely request for access to the plaintiffs psychiatric records. At the hearing, however, the plaintiff s counsel elicited testimony from the plaintiffs parents in which they described the cognitive and psychological issues with which the plaintiff was struggling and the role that hospitalization at Riverview Hospital had played in helping her to deal with these issues. In light of this testimony, the hearing officer asked the witnesses to clarify the plaintiffs psychiatric history. Zuckerman objected to such testimony because the department had not been alerted to the existence of relevant psychiatric information. When the hearing officer then ordered release of the plaintiffs psychiatric records, the plaintiff objected. In light of the fact that the plaintiffs own witnesses opened the door to an inquiry into her psychiatric history, we can find no basis for her present assertion that the hearing officer’s order violated her constitutional right to due process.

In conclusion, we are persuaded that the defendant’s rejection of the plaintiffs application for the department’s services is supported by the administrative record. The record makes it clear, as the hearing officer found, that the plaintiff has demonstrated deficits in her adaptive behavior and that she needs special education accommodations. Nonetheless, the record furnishes a reasonable factual basis for the administrative finding that the plaintiff did not qualify for the department’s services because her test scores on several intelligence tests did not establish subaverage general intellectual ability and therefore did not satisfy the eligibility requirement contained in § 1-lg. The record likewise establishes that the plaintiff was not deprived of her constitutional rights.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 1-lg provides: “(a) For the purposes of sections 4a-60, 17a-274, 17a-281, 38a-816, 45a-669 to 45a-684, inclusive, 46a-51, 53a-59a, 53a-60b, 53a-60b, and 53a-61a, mental retardation means a significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period.
      “(b) As used in subsection (a) of this section, ‘general intellectual functioning’ means the results obtained by assessment with one or more of the individually administered general intelligence tests developed for that purpose and standardized on a significantly adequate population and administered by a person or persons formally trained in test administration; ‘significantly subaverage’ means an intelligence quotient more than two standard deviations below the mean for the test; ‘adaptive behavior’ means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected for the individual’s age and cultural group; and ‘developmental period’ means the period of time between birth and the eighteenth birthday.”

       In addition, the plaintiffs parents described the plaintiffs behavioral and intellectual difficulties.

       The plaintiff received a score of eight-five on the verbal comprehension standard, a score of sixty-five on the perceptual reasoning standard, a score of fifty-nine on the working memory standard and a score of seventy-five on the processing speed standard.

       Although the plaintiff alludes in her brief to a later evaluation, she has not contested the defendant’s representation, in footnote 5 of his brief, that the trial court denied the plaintiffs motion to supplement the record in this case. Because this evaluation was not, in fact, made part of this record, we cannot consider it.