James S. Erisoty's Appeal From Probate, 14002

• Decision Date: 27 November 1990
• Docket Number: No. 14002,14002
• Citation: 582 A.2d 760,216 Conn. 514
• Court: Connecticut Supreme Court
• Parties: JAMES S. ERISOTY'S APPEAL FROM PROBATE.

Page 760

582 A.2d 760

216 Conn. 514

JAMES S. ERISOTY'S APPEAL FROM PROBATE.

No. 14002.

Supreme Court of Connecticut.

Argued Oct. 3, 1990.

Decided Nov. 27, 1990.

Frank P. Lockard, East Hartford, for appellant (plaintiff).

Ellen Burns Landers, Manchester, for appellee (Willie Edward Harrison).

Richard C. Willard, East Hartford, for minor child.

Before PETERS, C.J., and SHEA, GLASS, HULL and BORDEN, JJ.

HULL, Associate Justice.

The dispositive issue in this appeal is whether in a paternity action by an alleged biological father a presumed biological father ordered by the Probate Court to submit to a blood grouping test is aggrieved as a result of the order within the meaning of General Statutes § 45-288. ¹ We conclude that since an order to submit to a blood grouping test may adversely affect one's legally protected interest in human dignity and privacy, a person is aggrieved by such an order. Accordingly, we reverse the judgment of the trial court.

The following facts are not in dispute. On October 29, 1987, Richard James Erisoty, the minor child, was born to Sarah Erisoty and James S. Erisoty, the plaintiff. Sarah Erisoty and the plaintiff had been married on August 26, 1978, and continued to be married until April 21, 1989. On January 17, 1989, Willie Edward Harrison filed an action for paternity as to the minor child in the Probate Court for the district of East Hartford pursuant to General Statutes § 46b-172a. ² The claim was contested. On motion by Harrison, the Probate Court issued the following order on April 3, 1989: "[T]hat [Harrison], [the] husband of the mother and the minor child submit to blood grouping tests as soon as can be arranged and that the results thereof be made available to counsel for all parties in interest. All expenses of said testing shall be paid by [Harrison].

"Upon receipt of said results by all counsel of record, this Court shall schedule a supplemental hearing to allow counsel the opportunity to present further evidence solely with regard to said blood tests and solely in accordance with evidentiary law."

On May 3, 1989, the plaintiff, claiming to be aggrieved, appealed from this order to the Superior Court for the judicial district of Hartford-New Britain pursuant to § 45-288. The plaintiff alleged in his reasons of appeal that: (1) the birth certificate of Richard James Erisoty shows the mother's maiden name to be Sarah Ruth Wheeler and the father's name to be James Steven Erisoty; (2) both Sarah Erisoty and the plaintiff testified that at and around the presumed time of conception of Richard James Erisoty, there was physical access between them; (3) Sarah Erisoty and the plaintiff have acknowledged their parenthood of Richard James Erisoty; and (4) in the dissolution of marriage action between James Erisoty and Sarah Erisoty, the Superior Court found Richard James Erisoty to be the lawful issue of the parties. The salient grounds of the plaintiff's appeal were set forth as follows: (1) "The tests ordered by the Probate Court would not be determinative of the parentage of the plaintiff or [Harrison], and would be a useless imposition on the plaintiff and the child"; and (2) "[t]he Probate Court should not have granted standing to [Harrison] to challenge the legitimacy of said child, but should have dismissed his petition before entering the order appealed from."

On November 17, 1989, Harrison moved to dismiss the Superior Court action on the ground that the court lacked subject matter jurisdiction over the action, arguing that the plaintiff was not aggrieved by the order of the Probate Court since the order did not adversely affect his rights. Harrison also claimed that the order was not a final judgment from which an appeal might be taken. The court implicitly found that the order was appealable, apart from any final judgment analysis, pursuant to the provisions of § 45-288, which provides for a right of appeal to "[a]ny person aggrieved by any order, denial or decree of a court of probate in any matter." (Emphasis added.) The court then considered the issue of aggrievement, relying primarily on the statement in Maloney v. Taplin, 154 Conn. 247, 250, 224 A.2d 731 (1966), that "[t]he qualifying interest [to establish aggrievement] may be a direct pecuniary one, or it may consist of an injurious effect upon some legally protected right or status of the appellant...." The court found that the plaintiff had not at that point "been subjected to a decision having an adverse pecuniary effect upon him nor ha[d] he had invaded any legally protected right or status by the order of the court." (Emphasis added.) Thus, the court found no aggrievement and granted the motion to dismiss for lack of subject matter jurisdiction.

The plaintiff appealed the judgment to the Appellate Court. We subsequently transferred the case to this court pursuant to Practice Book § 4023.

The plaintiff has presented the following two issues in this appeal: (1) whether the trial court properly concluded that the order of the Probate Court requiring Harrison, the plaintiff and the minor child to submit to blood grouping tests did not affect a legally protected right or status of the plaintiff and that he was, therefore, not aggrieved by the order; and (2) whether the court properly concluded that the order was not a final judgment from which an appeal could be taken to the Superior Court.

Because the finality of the judgment, if that were indeed an issue, would implicate our subject matter jurisdiction, we first address the plaintiff's second issue. The plaintiff asserts that the trial court dismissed his appeal, in part, for lack of a final judgment. This assertion is mistaken for two reasons. First, the ruling by the trial court was not adverse to the plaintiff in this respect, but rather in his favor. Although the trial court merely quoted that part of § 45-288 which gave a right to appeal to "[a]ny person aggrieved by any order, denial or decree of a court of probate in any matter" (emphasis in original), it is clear that the court, by then proceeding to consider aggrievement, implicitly found the disputed order to be properly appealable. Given the plain meaning of § 45-288, we do not see how the court could have ruled otherwise.

Second, the often thorny issue as to whether a judgment of the Superior Court is a final judgment for purposes of appeal; see General Statutes § 52-263 (final judgment required to prosecute appeal from the Superior Court); is not involved in an appeal from a judgment of a Probate Court. As the trial court implicitly recognized, since the right of appeal at issue is available under § 45-288 to "[a]ny person aggrieved by any order, denial or decree of a court of probate in any matter," the section does not require a final judgment. ³

We are thus left with the sole issue of aggrievement. Before deciding this issue we point out what we are not deciding. This case comes to this court on appeal from the judgment of the Superior Court granting a motion to dismiss the plaintiff's appeal to that court from the order of the Probate Court. Because it is not an appeal of the merits of the Probate Court order, we do not herein determine the propriety of such an order.

We begin our inquiry with a succinct summary of the law on this subject. "In order to prosecute an appeal from a Probate Court, it is necessary that the plaintiff be aggrieved within the meaning of § 45-288. Aggrievement as a concept of standing is a practical and functional one designed to assure that only those with a genuine and legitimate interest can appeal an order of the Probate Court. '[T]he frequent statement that a plaintiff, to be aggrieved, must have a pecuniary interest; Kerin v. Goldfarb, [160 Conn. 463, 280 A.2d 143 (1971) ]; Williams v. Houck, 143 Conn. 433, 437, 123 A.2d 177 [1956]; Ciglar v. Finkelstone, 142 Conn. 432, 434, 114 A.2d 925 [1955]; Weidlich v. First National Bank & Trust Co., 139 Conn. 652, 656 96 A.2d 547 [1953]; is too narrow to deal with the various types of cases presented by appeals from probate. See O'Leary v. McGuinness, 140 Conn. 80, 98 A.2d 660 [1953]; Spencer's Appeal, 122 Conn. 327, 332-33, 188 A. 881 [1937]; ... 1 Locke & Kohn, ... [Conn.Probate Practice] § 188.' Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 338 A.2d 497 [1973]. 'In determining whether an appellant has a grievance ... the question is whether there is a possibility, as distinguished from a certainty, that some legally protected interest which he has in the estate has been adversely affected.' O'Leary v. McGuinness, [supra, 140 Conn. at 83, 98 A.2d 660 ]." Gaucher v. Estate of Camp, 167 Conn. 396, 400-401, 355 A.2d 303 (1974).

" 'The issue of whether [a party] was aggrieved under § 45-288 by the actions of the Probate Court is to be distinguished from the question of whether, on a review of the merits, it will prevail. To examine the present issue the two parts of aggrievement need to be considered: (1) the nature of the appellant's interest, and (2) the adverse effect, if any, of the Probate Court's decision on that interest.' Hartford Kosher Caterers, Inc. v. Gazda, [supra, 165 Conn. at 485, 338 A.2d 497]." Baskin's Appeal from Probate, 194 Conn. 635, 638, 484 A.2d 934 (1984).

The plaintiff argues that the order to submit to a blood grouping test adversely affects (1) his interest in the security of his person protected by the fourth amendment ⁴ to the United States constitution and the constitution of Connecticut, article first, § 7, ⁵ and (2) his presumptive parental status, and his parental rights protected by the fourteenth amendment ⁶ to the United States constitution. Harrison counters that the plaintiff has not yet been affected by the judgment of the Probate Court.

We dispose summarily of Harrison's argument that the plaintiff has not been aggrieved, because the blood taking has not yet occurred. As previously stated, the question of whether one has been aggrieved by an...