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Ferraiolo v. Ferraiolo

Appellate Court of Connecticut

May 19, 2015

JOSEPH FERRAIOLO
v.
JILL FERRAIOLO

Submitted on Briefs February 13, 2015.

Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Ansonia-Milford, where the court, Turner, J., rendered judgment dissolving the marriage and granting certain other relief in accordance with the parties' separation agreement; thereafter, the court, Malone, J., denied the plaintiff's motion for order, and the plaintiff appealed to this court; subsequently, this court sua sponte granted intervenor status to Susan Bennett, executrix of the defendant's estate, as an appellee.

Improper form of judgment; judgment directed.

SYLLABUS

The plaintiff, whose marriage to the defendant previously had been dissolved, appealed to this court from the judgment of the trial court denying his postjudgment motion for order. The dissolution judgment, which incorporated the parties' separation agreement, required the parties to maintain their existing life insurance policies, which were to name an irrevocable life insurance trust as the beneficiary of the policies. The trust was to be established for the benefit of the parties' children and both parties were to be named as trustees. Following the dissolution judgment, the parties failed to create the agreed upon life insurance trust. Approximately five years after the judgment, the defendant executed a will that created testamentary trusts naming the parties' children as the beneficiaries. The trusts were to be funded in part by the defendant's life insurance policy. The will also named the defendant's sister, B, as the executrix of the defendant's estate and the trustee of the trusts. The defendant subsequently died, and her will was submitted to the Probate Court, which appointed B as the executrix of the defendant's estate and the trustee of the trusts. Thereafter, the plaintiff filed a motion for order requesting the trial court to order the Probate Court to remove B as the trustee of the trusts and to appoint him as the sole trustee. The trial court denied the plaintiff's motion, concluding that it did not have subject matter jurisdiction over the motion. Held that although the trial court properly determined that it lacked subject matter jurisdiction over the plaintiff's motion for order, that court improperly denied the motion, and, therefore, the case was remanded to the trial court with direction to render judgment dismissing the plaintiff's motion for order: because the plaintiff did not file an appeal from the Probate Court's order appointing B as the trustee of the testamentary trusts created by the defendant's will but, instead, sought relief from the trial court, it lacked subject matter jurisdiction over the plaintiff's motion for order as the applicable statute (§ 45a-24) prevents persons from appearing before a trial court to contest a probate court's order without first filing an appeal from that order; moreover, if the trial court had granted the plaintiff's motion for order, it would have resulted in an impermissible collateral attack on the Probate Court's order.

William W. Cote filed a brief for the appellant (plaintiff).

Thomas S. Luby filed a brief for the appellee (intervenor).

Alvord, Keller and Bear, Js. KELLER, J. In this opinion the other judges concurred.

OPINION

Page 367

[157 Conn.App. 352] KELLER, J.

The plaintiff, Joseph Ferraiolo, appeals from the judgment of the trial court denying his motion for order. In his motion, he requested that the court issue an order to the Probate Court mandating that it remove Susan Bennett, an intervening appellee in this case, as trustee of the testamentary trusts established through the will of the defendant, Jill Ferraiolo, and appoint him as the sole trustee of the trusts.[1] He claims that the court erred by (1) concluding that it lacked subject matter jurisdiction over his motion and (2) failing to address whether Bennett had standing to intervene to object to his motion, which he claims that Bennett lacked. We hold that the court did not err in concluding that it lacked subject matter jurisdiction, but it incorrectly denied the plaintiff's motion for order rather than dismissing it. Accordingly, we reverse the judgment of the trial court and remand the case with

Page 368

direction to render judgment dismissing the plaintiff's motion for order.

The following facts, as found by the court or as apparent in the record, and procedural history are relevant here. In October, 2007, the court rendered a judgment of dissolution of the parties' marriage, incorporating into the judgment a separation agreement executed by the parties. The agreement required both parties to maintain their existing life insurance policies. The life [157 Conn.App. 353] insurance policies were to name an irrevocable insurance trust, established by the parties for the benefit of their children, as the beneficiary of their respective policies, and both parties ...


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