Ciarleglio v. Martin

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Ciarleglio v. Martin

VINCENT CIARLEGLIO v. MIRIAM MARTIN
(AC 45535)
Elgo, Suarez and Seeley, Js.*

Syllabus

The defendant appealed from the judgment of the trial court granting an
annulment of her marriage to the decedent. The defendant claimed, inter alia,
that the trial court lacked subject matter jurisdiction because the substitute
plaintiff, the administrator of the decedent’s estate, lacked standing to con-
tinue the annulment action after the decedent’s death. Held:

The trial court did not lack subject matter jurisdiction over the action
pursuant to statute (§ 52-599 (a)).

The exception set forth in § 52-599 (c) (1) was inapplicable to the circum-
stances presented by this case as the annulment action was not rendered
useless by the death of the decedent, the administrator of his estate having
had a legitimate fiduciary interest in establishing the identity of the rightful
heirs as well as a duty to carry out the wishes of the decedent.

The plaintiff’s continuation of the action to annul the marriage following
the death of the decedent did not constitute an impermissible collateral
attack on a legally valid marriage.

The defendant failed to preserve her claim, and induced any error, with
respect to the applicable standard of proof and could not prevail under the
plain error doctrine.
Argued January 8—officially released September 24, 2024

Procedural History

Action for the dissolution or annulment of a marriage,
and for other relief, brought to the Superior Court in
the judicial district of New Haven, where Steven M.
Allinson, the administrator of the plaintiff’s estate, was
substituted as the plaintiff; thereafter, the matter was
tried to the court, Goodrow, J.; judgment annulling the
marriage, from which the defendant appealed to this
court. Affirmed.
Sean R. Caruthers, for the appellant (defendant).
* Although Judge Suarez was not present at oral argument, he has read
the briefs and appendices and listened to a recording of the oral argument
prior to participating in this decision.
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Gregory A. Allen, with whom were Steven M. Allin-
son, and, on the brief, Kathleen S. Lima, for the appellee
(substitute plaintiff).
Opinion

ELGO, J. The defendant, Miriam Martin, appeals from
the judgment of the trial court granting an annulment
of her marriage to the decedent, Vincent Ciarleglio.1 On
appeal, the defendant claims that (1) the court lacked
subject matter jurisdiction because the plaintiff lacked
standing to continue the annulment action after the
decedent’s death, (2) the plaintiff’s action to annul the
marriage following the death of the decedent consti-
tuted an impermissible collateral attack on a legally
valid marriage, and (3) the court held the plaintiff to
an incorrect burden of proof when it granted the annul-
ment. We affirm the judgment of the trial court.
The following undisputed facts and procedural his-
tory are relevant to the defendant’s claims. The parties
obtained a marriage license on February 7, 2019, and
were married later that day. At the time of the marriage,
the decedent was eighty-two years old, and the defen-
dant was fifty-two years old. The marriage ceremony
was performed by a justice of the peace who was a
1
Ciarleglio commenced the present action by service of process on June
21, 2019. He died shortly thereafter, on August 24, 2019, and a motion to
substitute party was granted on January 5, 2021. A motion to amend the
complaint subsequently was granted, resulting in the operative complaint
improperly naming the ‘‘Estate of Vincent Ciarleglio’’ (estate) as the plaintiff.
The parties do not contest that a scrivener’s error occurred when the court
improperly substituted the estate as the plaintiff instead of Steven M. Allinson
in his capacity as the administrator thereof. See Estate of Rock v. University
of Connecticut, 323 Conn. 26, 32, 144 A.3d 420 (2016) (‘‘An estate is not a
legal entity. It is neither a natural nor artificial person, but is merely a name
to indicate the sum total of the assets and liabilities of the decedent or
incompetent. . . . Not having a legal existence, it can neither sue nor be
sued.’’ (Internal quotation marks omitted.)). For clarity, we refer to Ciarleglio
as the decedent and to the administrator of his estate as the plaintiff in
this opinion.
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friend of the defendant and an acquaintance of the
decedent. No family members were invited to or
attended the ceremony. Two days before the defendant
obtained the marriage license, the decedent underwent
a surgical procedure and was suffering from numerous
medical conditions. The decedent was hospitalized two
days after the ceremony.
On May 22, 2019, the Probate Court appointed the
decedent’s niece as his conservator under a voluntary
conservatorship. In June, 2019, the decedent met with
an attorney to secure legal representation for a divorce
or annulment and, on June 21, 2019, he commenced an
action to dissolve or annul the marriage on the basis
that he ‘‘was incompetent at [the] time of marriage.’’
On July 8, 2019, the decedent’s attorney filed numerous
motions on his behalf, in which the decedent sought
exclusive possession of his premises and the return of
certain personal items. On July 22, 2019, the decedent’s
attorney filed a motion asking the court to enjoin the
defendant from collecting rent on properties owned by
the decedent. Both parties filed mandatory disclosure
and production orders, and the defendant filed a motion
for alimony pendente lite. Less than two months after
this action commenced, the decedent died intestate on
August 24, 2019.
On September 3, 2019, the defendant filed a motion
to dismiss the action for lack of subject matter jurisdic-
tion, asserting that the court was unable to grant any
relief in the matter due to the decedent’s death. Noting
that the parties were married when the action com-
menced and relying on General Statutes § 52-599 (a),
the court concluded that an annulment action does not
abate upon the death of a plaintiff, unless there is no
fiduciary in place to continue the litigation on behalf
of the decedent.2 Stating that it was unaware of any
2
General Statutes § 52-599 (a) provides: ‘‘A cause or right of action shall
not be lost or destroyed by the death of any person, but shall survive in
favor of or against the executor or administrator of the deceased person.’’
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fiduciary acting on behalf of the estate, the court
granted the defendant’s motion and dismissed the
action without prejudice.
Less than one month later, the Probate Court
appointed the plaintiff, Steven M. Allinson, as tempo-
rary administrator of the estate of the decedent, with
broad authority ‘‘to deal with all aspects of the estate,
including but not limited to lawsuits, finances, rents,
custody of the remains, and any other matter the tempo-
rary administrator feels is necessary to fulfill his duties.’’
On February 14, 2020, the plaintiff moved to open the
judgment of dismissal and simultaneously moved to
substitute the decedent’s estate as party plaintiff ‘‘[i]n
order to preserve any and all claims by the decedent.’’3
On November 30, 2020, the court granted the motion
to open the judgment. The court thereafter held a hear-
ing on the motion to substitute, which the defendant
did not attend. Following the hearing, the court granted
that motion.4
On February 8, 2021, the plaintiff filed a motion for
permission to file an amended complaint, in which he
sought an annulment of the marriage on the ground
that it was void or voidable due to incompetence. The
defendant objected, citing procedural defects in the
motion to amend. The plaintiff then filed a second
3
In his supplemental brief in support of the motion to substitute, the
plaintiff argued that, because the annulment action affects not only the
‘‘legality of the marriage’’ but also ‘‘the division of property and other assets
as well,’’ the ‘‘interest of the parties in an annulment and the purpose of an
annulment does not extinguish at the death of one of the parties and the
action may survive by the executor.’’ See Perlstein v. Perlstein, 26 Conn.
Supp. 257, 258, 217 A.2d 481 (1966) (‘‘[a] direct action to annul a marriage
not only affects the status of the marriage itself but may also affect property
rights arising from this status’’).
4
As previously noted, the action continued under ‘‘Estate of Vincent Ciar-
leglio’’ due to a scrivener’s error; see footnote 1 of this opinion; despite the
order of the court granting substitution of the administrator.
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motion to amend the complaint; after a hearing, the
court granted the motion without objection.5
A trial was scheduled for April 25, 2022. Before trial,
the plaintiff filed proposed orders requesting: ‘‘(1) The
parties’ marriage of February 7, 2019, shall be annulled
and deemed void as of the date of its initiation, February
7, 2019, and the marriage be annulled; [and] (2) [a]ll
issues regarding the estate of [the decedent] and
finances in this matter shall be referred to the Hamden/
Bethany Probate Court for further proceedings consis-
tent with the finding that the marriage between [the
decedent] and [the defendant] was annulled and
deemed void.’’ A three day trial followed, at which both
the defendant and the plaintiff were represented by
counsel.
On May 9, 2022, the court issued a memorandum of
decision, in which it found the following relevant facts:
‘‘The decedent was under medical care at the time the
parties married, [had] uncontrolled diabetes and . . .
was medically compromised with reduced blood flow.
On February 5, 2019, two days before the marriage, the
decedent was infused with fentanyl and Demerol so
that his physician could search his upper bowels to
determine the cause of his blood loss, dizziness, and
general weakness. He was suffering from a defective
heart, hypertension, heart valve failure, loss of blood
to the brain, fainting and immune deficiency in addition
to other illnesses. On February 7, 2019, the day of the
marriage, the decedent was acutely ill, medically com-
promised and could not have made prudent decisions.
He was suffering from numerous medical conditions,
5
The defendant did not, at any time in the underlying action, raise an
objection based on the plaintiff’s lack of standing. Because standing impli-
cates subject matter jurisdiction, which can be raised at any time, and the
defendant asserts a colorable claim of lack of standing, we nevertheless
consider her claim on appeal. See, e.g., Kloiber v. Jellen, 207 Conn. App.
616, 621–22, 263 A.3d 952 (2021).
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including a seizure caused by a blood infection, blood
loss and dizziness, weakness, chronic anemia, difficulty
breathing, fever, kidney failure and the beginnings of
liver failure. The kidney failure impacted the decedent’s
cognitive abilities and affected his competency and abil-
ity to comprehend and make decisions. He was not
receiving sufficient oxygen to the brain. The court finds
based on Dr. [Michael] Nelken’s opinion that the dece-
dent’s body was ‘poisoning his brain’ for a period prior
to the marriage.’’6

In its memorandum of decision, the court credited
testimony from the decedent’s niece that, during his
February, 2019 hospitalization, the decedent told her
that he was not married. She further testified that when
she later presented him with the marriage license in
early May, 2019, the following exchange took place: ‘‘At
first he didn’t know what I was showing him. And then
I—I explained to him that it was a marriage license and
that his signature was on the paper, the copy that I had.
6
In finding those facts, the court credited the testimony of the plaintiff’s
expert witness, Nelken, an expert in the field of psychiatry who had reviewed
the decedent’s extensive medical records. The court found that Nelken
‘‘credibly testified that the decedent was medically compromised to such a
degree on February 7, 2019, that he was not competent to make important
decisions.’’ Nelken’s testimony included, inter alia, that just days prior to the
ceremony, the decedent was suffering from twenty-eight separate medical
conditions—these conditions, which were listed in Nelken’s report, included
prostate cancer, a blood infection, congestive heart failure, anemia, edema,
gout, and numerous other heart problems. Additionally, just two days before
the wedding ceremony, the decedent underwent a surgical procedure to
investigate his blood loss and dizziness. The day after the ceremony, Febru-
ary 8, the decedent was advised to go to an emergency room—due to
shortness of breath and the ongoing blood infection—but he did not go
until the following day. When testing was done on February 8—one day
after the ceremony—it revealed kidney failure. Kidney failure, Nelken
opined, raises ‘‘questions about [the decedent’s] competence’’ because
‘‘these kinds of results don’t occur instantaneously.’’ On February 9, the
decedent was hospitalized for four days, and further testing revealed ane-
mia—the inability of the blood to transmit oxygen—and blood infection.
Nelken’s report was admitted as a full exhibit and credited by the court.
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And he just looked at me confused and he said, no, he
goes, I didn’t get married. And I said, well apparently
you did because I have the license in front of me. And
I was showing it to him. And all he said to me was, I
was tricked.’’
On the basis of the medical records of the decedent’s
hospitalization on February 9, 2019, which were admit-
ted into evidence, the court further found that the dece-
dent ‘‘was panting, wheezing, had blood in his feces,
swollen legs, a heart murmur, and kidney failure’’ and
that he ‘‘refused to admit that he was experiencing any
medical problems and denied any medical complaints,
demonstrating confusion and inattention,’’ from which
the court inferred that ‘‘the decedent was not in touch
with reality.’’
The court did not credit the testimony of the defen-
dant or the witness who performed the ceremony. The
court expressly found that ‘‘[t]heir testimony was incon-
sistent regarding the planning of the marriage and not
credible considering the overwhelming weight of the
evidence that the decedent was not competent to con-
sent to the marriage.’’ The defendant does not challenge
the propriety of those findings on appeal.
In its memorandum of decision, the court stated that,
although statutory prohibitions can render a marriage
void, a lack of consent is a ‘‘substantive defect, derived
from the common law, sufficient to avoid a marriage.’’7
(Internal quotation marks omitted.) The court found
On appeal, the defendant claims that ‘‘the trial court’s memorandum of
7

decision makes no distinction between a void marriage and a voidable
marriage’’ and argues that the marriage at issue in this case was voidable,
rather than void. The plaintiff, likewise, does not dispute that it sought an
annulment of a voidable marriage on the basis of mental incapacity and
that ‘‘[a]t no time did any party state [that the decedent] was statutorily
incapacitated to the point that the marriage from the start was void.’’ During
closing arguments, the plaintiff’s counsel explicitly argued that the decedent
did not ‘‘properly enter into the contract of marriage.’’
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that ‘‘the decedent was not competent to marry’’ on the
basis of ‘‘[t]he overwhelming evidence’’ before it and
concluded that ‘‘[t]he decedent did not possess at the
time of the marriage on February 7, 2019, a sufficient
mental capacity to understand and comprehend the
consequences of the marriage or to consent to the mar-
riage. He was medically and cognitively compromised
to such a degree on February 7, 2019, that he was unable
to consent to the marriage. Therefore, because the dece-
dent was incapable of consenting to the marriage due
to his insufficient mental capacity, the marriage is void.’’
The court thus rendered judgment annulling the mar-
riage of the decedent and the defendant, and this appeal
followed.
I
The defendant first claims that the court lacked sub-
ject matter jurisdiction because the plaintiff lacked
standing to continue the annulment action following the
death of the decedent. More specifically, the defendant
argues that § 52-599 does not grant standing to the
administrator of an estate, when substituted in an annul-
ment action initiated by a decedent plaintiff, because
an exception set forth in subsection (c) of that statute
applies to this scenario. Because standing is a threshold
issue, we first address the question of whether the plain-
tiff is statutorily aggrieved under § 52-599.
The following legal principles are relevant to this
claim. ‘‘When standing is put in issue, the question is
whether the person whose standing is challenged is a
proper party to request an adjudication of the issue
. . . . Standing requires no more than a colorable claim
of injury; a [party] ordinarily establishes . . . standing
by allegations of injury. Similarly, standing exists to
attempt to vindicate arguably protected interests. . . .
Standing is established by showing that the party claim-
ing it is authorized by statute to bring an action, in
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other words, statutorily aggrieved, or is classically
aggrieved. . . . [Statutory] [s]tanding concerns the
question [of] whether the interest sought to be pro-
tected by the complainant is arguably within the zone
of interests to be protected or regulated by the statute
or constitutional guarantee in question.’’ (Internal quo-
tation marks omitted.) Handsome, Inc. v. Planning &
Zoning Commission, 317 Conn. 515, 525, 119 A.3d
541 (2015).
‘‘Statutory aggrievement exists by legislative fiat, not
by judicial analysis of the particular facts of the case.
In other words, in cases of statutory aggrievement, par-
ticular legislation grants standing to those who claim
injury to an interest protected by that legislation.’’
(Internal quotation marks omitted.) Burton v. Commis-
sioner of Environmental Protection, 291 Conn. 789,
803, 970 A.2d 640 (2009).
In the present case, the plaintiff claims to be
aggrieved pursuant to § 52-599 (a). To resolve that
claim, we first consider whether such standing exists
under the broad contours of the statute and then turn
to the question of whether an exception set forth in
§ 52-599 (c) applies.
A
Section 52-599 sets out the circumstances under
which an action interrupted by the death of a litigant
shall be allowed to continue by substituting the execu-
tor or administrator of the estate in place of a deceased
litigant. When presented with questions of statutory
interpretation, we are guided by General Statutes § 1-
2z, commonly known as the plain meaning rule, which
provides: ‘‘The meaning of a statute shall, in the first
instance, be ascertained from the text of the statute
itself and its relationship to other statutes. If, after
examining such text and considering such relationship,
the meaning of such text is plain and unambiguous and
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does not yield absurd or unworkable results, extratex-
tual evidence of the meaning of the statute shall not
be considered.’’
The language of § 52-599 (a) is both broad and manda-
tory, providing that ‘‘[a] cause or right of action shall
not be lost or destroyed by the death of any person,
but shall survive in favor of or against the executor or
administrator of the deceased person.’’ Substitution in
this manner can cure a jurisdictional defect, which is
the precise purpose of § 52-599.8 ‘‘The phrase right of
action includes the right to commence and maintain an
action.’’ (Internal quotation marks omitted.) Hayes v.
Smith, 194 Conn. 52, 62, 480 A.2d 425 (1984).
Both principles of equity and judicial precedent sup-
port the proposition that the administrator of an estate
properly may maintain an annulment action initiated
by a decedent plaintiff. Although there is no clear prece-
dent establishing that an annulment action, initiated
prior to the death of a party, can proceed under § 52-
599, we note that, as a general principle, ‘‘[o]ur rules
of practice . . . permit the substitution of parties as
the interests of justice require.’’ Federal Deposit Ins.
Corp. v. Retirement Management Group, Inc., 31 Conn.
App. 80, 84, 623 A.2d 517, cert. denied, 226 Conn. 908,
625 A.2d 1378 (1993); see also General Statutes §§ 52-
107, 52-108 and 52-109; Practice Book §§ 9-18 and 9-19.
The rules permitting the substitution of parties as the
interests of justice require ‘‘are to be construed so as
to alter the harsh and inefficient result that attached
to the mispleading of parties at common law.’’ (Internal
quotation marks omitted.) Byrne v. Avery Center for
Obstetrics & Gynecology, P.C., 212 Conn. App. 339, 372
8
Discussing the substitution of an administrator of an estate for a conser-
vator who had brought various tort actions on behalf of a plaintiff who died
prior to judgment, our Supreme Court noted that any potential jurisdictional
defect was cured by the substitution of the administrator of the estate.
Kortner v. Martise, 312 Conn. 1, 10–11, 91 A.3d 412 (2014).
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n.24, 275 A.3d 639, cert. denied, 343 Conn. 933, 276 A.3d
974 (2022).
Alongside these guiding principles, we also have guid-
ance from our Supreme Court, which, as this court
previously has noted, ‘‘has described § 52-599 as having
a broad sweep and that the only exceptions to its appli-
cation are those set forth in § 52-599 (c): (1) . . . any
cause or right of action or . . . any civil action or pro-
ceeding the purpose or object of which is defeated or
rendered useless by the death of any party thereto, (2)
. . . any civil action or proceeding whose prosecution
or defense depends upon the continued existence of
the persons who are plaintiffs or defendants, or (3)
. . . any civil action upon a penal statute.’’ (Emphasis
in original; internal quotation marks omitted.) In re
David B., 167 Conn. App. 428, 442, 142 A.3d 1277 (2016).
It is also a long-standing principle that, because mar-
riage is of vital social importance, ‘‘any question touch-
ing its dissolution should be passed upon with that fact
and the interests of the [s]tate and society in view
. . . .’’ Lyman v. Lyman, 90 Conn. 399, 411, 97 A. 312
(1916); see also Boddie v. Connecticut, 401 U.S. 371,
376, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971) (‘‘marriage
involves interests of basic importance in our society’’).
There is a strong presumption of validity for marriage,
as ‘‘[t]he policy of the law is strongly opposed to regard-
ing an attempted marriage . . . entered into in good
faith, believed by one or both of the parties to be legal,
and followed by cohabitation, to be void.’’ Hames v.
Hames, 163 Conn. 588, 599, 316 A.2d 379 (1972).
In the present case, the defendant asks us to rule
that the death of a party seeking an annulment would
automatically validate the very same marriage that is
being challenged as invalid. Given the broad and manda-
tory language of § 52-599, we cannot agree.
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Our Supreme Court has held that the administrator
of an estate has, by virtue of the survival statute, and
rooted in common law, ‘‘the right and duty to recover or
clear title to real property when the estate is insolvent.’’
Miner v. Miner, 137 Conn. 642, 647, 80 A.2d 512 (1951).
In Miner, the administrator of an estate continued a
quiet title action initiated by a decedent plaintiff; id.,
643–44; although the legal title may have been with the
heirs or devisees.9 Id., 647; see also Poglitsch v. Camp
Bethel Assn., Inc., Docket No. CV-XX-XXXXXXX-S, 2021
WL 1400927, *9 (Conn. Super. March 1, 2021) (‘‘[t]he
court concludes that § 52-599, which does not place
any limit on the type of action that may survive upon
substitution of an executor, operates so as to provide
statutory aggrievement to an executor or administrator
to continue pursuit of a quiet title action commenced
prior to the death of a testator’’).

Conversely, our courts have prohibited substitution
in cases where specific relief was sought, such as an
injunction for specific performance. See Groton v. Com-
mission on Human Rights & Opportunities, 169 Conn.
89, 100–101, 362 A.2d 1359 (1975). Determination of
paternity, a proceeding instituted to ascertain a relation-
ship or status between persons, was held to be purely
‘‘personal to the parties.’’ (Internal quotation marks
omitted.) Hayes v. Smith, supra, 194 Conn. 62.

In the present case, the plaintiff proposed orders
relating to the court’s division of the estate. The plaintiff
9
In Miner, our Supreme Court applied General Statutes (1949 Rev.) § 8337,
the predecessor to § 52-599, in determining that the trial court possessed
subject matter jurisdiction. See Miner v. Miner, supra, 137 Conn. 646–47.
Connecticut has had similar statutes in place since at least 1903. See Pickett
v. Ruickoldt, 91 Conn. 680, 683, 101 A. 82 (1917) (‘‘[u]nder [the Survival Act
of 1903] the survival of actions is the rule and not the exception, and the
presumption is that every cause or right of action survives until the contrary
is made to appear by way of exception to the rule’’).
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cites the ‘‘significant financial implications’’ of an annul-
ment, given that the decedent died intestate. The defen-
dant likewise acknowledges that the granting of an
annulment ‘‘stripped’’ her of ‘‘the rights and benefits
that she enjoyed as a married person’’ despite the death
of the decedent.
Given that there was sufficient purpose to continue
the annulment action, as conceded by the defendant’s
own characterization of the situation and supported by
established precedent, we conclude that the administra-
tor of the estate of a decedent plaintiff is statutorily
aggrieved and, thus, has standing to continue an annul-
ment action under § 52-599 (a).
B
We turn next to the question of whether the exception
set forth in § 52-599 (c) (1) applies in this case. We
conclude that it does not.
Section 52-599 (c) (1) provides: ‘‘The provisions of
this section shall not apply . . . [t]o any cause or right
of action or to any civil action or proceeding the purpose
or object of which is defeated or rendered useless by
the death of any party thereto . . . .’’ The defendant
claims that § 52-599 (c) (1) applies in the present case,
arguing that the action seeking annulment is rendered
useless or absurd because ‘‘the very same second the
motion to open [would be] granted, General Statutes
§ 46b-40 would immediately operate to dissolve the
marriage.’’ Section 46b-40 provides in relevant part: ‘‘(a)
A marriage is dissolved only by (1) the death of one of
the parties or (2) a decree of annulment or dissolution
of the marriage by a court of competent jurisdiction.
(b) An annulment shall be granted if the marriage is
void or voidable under the laws of this state or of the
state in which the marriage was performed. . . .’’ The
defendant contends that, by allowing an annulment
action to continue under the survival statute, the court
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effectively reinstated a marriage that already had dis-
solved upon the death of one of the parties. Because
we do not read the statute to compel that result, we
cannot agree with the defendant.
The broad application of § 52-599 mandated by our
Supreme Court; see Foisie v. Foisie, 335 Conn. 525,
532, 239 A.3d 1198 (2020); In re David B., supra, 167
Conn. App. 442; informs our analysis of the exceptions
contained therein. There is a general policy favoring
‘‘the continuation and timely resolution of actions on
the merits whenever possible.’’ In re David B., supra,
442. As this court previously has observed, when a party
seeks to substitute the administrator of the estate of
a deceased plaintiff, the applicability of § 52-599 can
reasonably be construed to extend to those civil cases
in which, despite the death of the plaintiff, ‘‘the continu-
ation of the litigation arguably could benefit the dece-
dent’s estate, typically in some pecuniary manner
. . . .’’ Id., 446. Where the value of the estate is at issue,
causes of action have been allowed to be continued by
the administrator of the estate because the substitution
would ‘‘do no more than enhance or diminish the estate
the same as it would have enhanced or diminished
the deceased [party’s] assets if he had lived.’’ Foisie v.
Foisie, supra, 542.
In considering the applicability of § 52-599 to an
action to annul a marriage, we note that, because prop-
erty rights attach to the status of marriage, an action to
annul not only seeks to affect the status of the marriage
itself, but also those attendant property rights. The
defendant acknowledges as much, arguing that ‘‘[t]he
trial court’s decision not only invalidated the parties’
marriage, but it also stripped [the defendant] of the
rights and benefits that she enjoyed as a married per-
son.’’ It is clear that, upon the death of a party seeking
an annulment, especially when that party dies intestate,
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the purpose of the underlying action becomes height-
ened—not useless. See Perlstein v. Perlstein, 26 Conn.
Supp. 257, 258, 217 A.2d 481 (1966) (noting that, under
§ 52-599, action to annul marriage was not rendered
useless upon death of plaintiff). This is particularly so
in this case where the decedent, prior to his death,
took action to protect his assets by seeking exclusive
possession of the premises, the return of personal items,
and to enjoin the defendant from collecting rent on his
properties.
In arguing that the continuation of an annulment
action effectively seeks to reinstate an already dissolved
marriage, the defendant mischaracterizes the holding
of our Supreme Court in Foisie v. Foisie, supra, 335
Conn. 525. She contends that, pursuant to § 46b-40, the
Supreme Court ‘‘expressly prohibit[ed]’’ the trial court’s
reopening of the judgment in that case because ‘‘[t]he
party’s death would defeat and render useless the
motion [seeking to alter marital status], because, once
granted, the reinstated marriage would automatically
be dissolved as of the date of the deceased party’s death
. . . .’’ The defendant is mistaken, as the court in Foisie
considered—and rejected—the argument that every
motion to open, if granted, would effectively reinstate
a marriage, even if one of the parties had died during
the pendency of the action. See Foisie v. Foisie, supra,
537.10 In concluding that the trial court in that case
10
Trial courts also have opened dissolution judgments for the limited
purpose of reconsidering financial orders with the stipulation of the parties.
See Reinke v. Sing, 186 Conn. App. 665, 667 n.1, 201 A.3d 404 (2018); see
also Lavy v. Lavy, 190 Conn. App. 186, 192, 210 A.3d 98 (2019) (parties
agreed to have court open dissolution judgment for purpose of conducting
limited discovery related to fraud claims). Here, the defendant did not object
to the motion to open the judgment nor the motion to substitute a party.
This is the functional equivalent of a stipulation to open the judgment for
a limited purpose, which was also operative in Foisie. The defendant’s
claim of lack of subject matter jurisdiction does not erase the underlying
procedural history.
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erred in determining that a motion to open a dissolution
judgment would automatically reinstate the marriage,
triggering § 46b-40 and immediately dissolving it, our
Supreme Court held that the determination of the issue
turned on the relief requested in the motion to open.11
Id., 536.
In the present case, the relief sought was an annul-
ment, and not the reinstatement, of a marriage.
Although the defendant’s theory may be compelling if
the sole relief being sought by the motion to open was
reinstatement of the marriage, it would be absurd to
demand that an action for annulment requires the rein-
statement of a marriage in order to void it. Here, as in
Foisie, the plaintiff was not attempting to have the
marriage reinstated. See id., 537. Indeed, the plaintiff
had moved to open the annulment action that had been
commenced by the decedent, who had taken steps to
protect his assets, and, on his death, the plaintiff duly
moved to protect the decedent’s estate.
Because the administrator of the estate has a legiti-
mate fiduciary interest in establishing the identity of
the rightful heirs, as well as a duty to carry out the
wishes of the decedent, it is only logical that he be
permitted to continue an action to annul a marriage
under the circumstances presented by this case.
We therefore conclude that the purpose of the cause
of action originally pursued by the decedent was not
defeated or rendered useless by his death. Accordingly,
the exception set forth in § 52-599 (c) (1) does not apply
in this case.
11
As our Supreme Court stated, ‘‘[a]lthough a motion to open, if granted,
may vacate the dissolution of the marriage and thereby reinstate the mar-
riage, that does not mean that the granting of every motion to open necessar-
ily vacates the dissolution of the marriage. Not every motion to open seeks
to vacate the dissolution of the marriage.’’ (Emphasis in original.) Foisie v.
Foisie, supra, 335 Conn. 537.
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II
We next address the defendant’s claim that, because
the marriage was voidable based on a claim of lack of
mental capacity, the decedent’s failure to ‘‘act’’ on his
annulment prior to his death operates as a waiver of
the voidable defect and abates upon his death. In other
words, because the marriage was voidable, it remained
legally valid until it was automatically dissolved upon
the decedent’s death pursuant to § 46b-40 (a). The
defendant therefore argues that the plaintiff’s action to
annul the marriage following the death of the decedent
constitutes an impermissible collateral attack on a
legally valid marriage.12
Whether the plaintiff’s action to annul the marriage
following the death of the decedent constitutes an
impermissible collateral attack on a legally valid mar-
riage presents a question of law over which our review
is plenary. ‘‘Because our review is plenary, we must
decide whether [the trial court’s] conclusions are legally
and logically correct and find support in the facts that
appear in the record.’’ (Internal quotation marks omit-
ted.) Karen v. Loftus, 210 Conn. App. 289, 297, 270 A.3d
126 (2022).
On appeal, the defendant contends that, if a party
does not ‘‘act [to obtain] an annulment from a court of
12
Although we agree with the defendant that the operative complaint seeks
to annul a voidable marriage, we do not read the trial court’s memorandum
of decision as necessarily differing from that premise. We reiterate that both
parties do not dispute that an annulment may be granted for either voidable
or void marriages, which, if granted, in either case would result in a judgment
that the marriage was void. Because the defendant raised her lack of standing
claim for the first time on appeal, which is also premised on her contention
that a voidable marriage dissolves upon death, the court had no occasion
to determine the legal status of the marriage as being either voidable or
void prior to rendering judgment. Against that backdrop, the court’s finding
and conclusion that, because ‘‘the decedent was incapable of consenting to
the marriage due to his insufficient mental capacity, the marriage is void’’
appears to represent the court’s judgment that the marriage is void based
on those findings and pursuant to the relief sought.
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competent jurisdiction prior to the death of one of the
parties, the voidable defect is deemed waived and will
abate with the death of a party.’’ We do not agree.
As our Supreme Court has explained, ‘‘[i]n the
absence of express language in the governing statute
declaring a marriage void for failure to observe a statu-
tory requirement, this court has held in an unbroken
line of cases since Gould v. Gould, 78 Conn. 242, 247,
61 A. 604 (1905), that such a marriage, though imperfect,
is dissoluble rather than void. Hames v. Hames, supra,
[163 Conn.] 598; Perlstein v. Perlstein, 152 Conn. 152,
157–58, 204 A.2d 909 (1964); Vendetto v. Vendetto, 115
Conn. 303, 305, 161 A. 392 (1932).’’ Carabetta v. Carabe-
tta, 182 Conn. 344, 349, 438 A.2d 109 (1980).
At the same time, ‘‘[w]e recognize that an annulment
and a dissolution of marriage differ fundamentally. An
annulment renders the marriage void ab initio while
a dissolution is based upon a valid marriage which
terminates as of the date of the judgment of dissolu-
tion.’’ Durham v. Miceli, 15 Conn. App. 96, 96, 543 A.2d
286 (1988).
By statute, an annulment must be granted if the mar-
riage is either void or voidable under the laws of this
state or of the state in which the marriage was per-
formed.13 Section 46b-40 (a) provides that ‘‘[a] marriage
is dissolved only by (1) the death of one of the parties
or (2) a decree of annulment or dissolution of the mar-
riage by a court of competent jurisdiction.’’ Subsection
(b) of § 46b-40 further provides: ‘‘An annulment shall
be granted if the marriage is void or voidable under the
laws of this state or of the state in which the marriage
was performed.’’
13
We note that our General Assembly could have prohibited the issuance
of an annulment after the death of one of the parties as other jurisdictions
have done, but it has not elected to do so. See, e.g., Wis. Stat. § 767.313 (2)
(2009) (‘‘A judicial proceeding is required to annul a marriage. A marriage
may not be annulled after the death of a party to the marriage.’’).
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Our modern statutory construction of § 46b-40 sup-
ports the distinction between annulment and dissolu-
tion and provides for annulments, in equity, to be
granted simply when ‘‘void or voidable.’’ Here, the plain-
tiff commenced an action to annul the parties’ marriage
but died before a decree of annulment could be issued
by the court. Had the plaintiff not commenced that
action, there can be little dispute that § 46b-40 (a) would
have operated to dissolve the marriage upon his death.
However, the defendant’s contention that the court
erred because the plaintiff did not ‘‘act [to obtain] an
annulment’’ prior to his death and therefore waived
the voidable defect suffers from a false premise. By
commencing the action in the first place, the plaintiff
did act to obtain an annulment. That he died before the
action was concluded does not obviate that undisputed
fact. We are thus hard-pressed to conclude that the
voidable defect must be deemed waived in the circum-
stances presented by this case.14
Put differently, § 46b-40 (a) does not set up a race
between two different actions—it sets up an alternative,
and legally distinct, avenue to effect the dissolution of
a marriage. In light of the foregoing, we conclude that
the plaintiff’s action to annul the marriage following
the death of the decedent did not constitute an imper-
missible collateral attack on a legally valid marriage.
III
The defendant also claims that the court held the
plaintiff to an incorrect standard of proof—a preponder-
ance of the evidence—when the appropriate standard
was clear and convincing evidence. The defendant
argues that this claim is properly preserved but that, in
14
Indeed, the court, in ruling on the motion to dismiss, recognized that
the circumstances warranted granting the motion without prejudice and
implicitly acknowledged that the action could be revived if a fiduciary was
appointed to continue the litigation pursuant to § 52-599.
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the alternative, we should apply the plain error doctrine.
We disagree with both contentions.
‘‘The question of whether a trial court has held a
party to a less exacting standard of proof than the law
requires is a legal one. . . . Accordingly, our review is
plenary.’’ (Internal question marks omitted.) In re Den-
zel W., 225 Conn App. 354, 372, 315 A.3d 346, cert.
denied, 349 Conn. 918, 317 A.3d 1 (2024). When
determining whether an issue is properly preserved,
‘‘[i]t is well established that an appellate court is under
no obligation to consider a claim that is not distinctly
raised at the trial level. . . . The requirement that [a]
claim be raised distinctly means that it must be so stated
as to bring to the attention of the court the precise
matter on which its decision is being asked. . . . The
reason for the rule is obvious: to permit a party to raise
a claim on appeal that has not been raised at trial—
after it is too late for the trial court or the opposing
party to address the claim—would encourage trial by
ambuscade, which is unfair to both the trial court and
the opposing party.’’ (Emphasis in original; internal quo-
tation marks omitted.) Downing v. Dragone, 216 Conn.
App. 306, 327, 285 A.3d 59 (2022), cert. denied, 346
Conn. 903, 287 A.3d 601 (2023).
Moreover, Practice Book § 5-2 provides in relevant
part: ‘‘Any party intending to raise any question of law
which may be the subject of an appeal must either state
the question distinctly to the judicial authority in a
written trial brief . . . or state the question distinctly
to the judicial authority on the record before such par-
ty’s closing argument and within sufficient time to give
the opposing counsel an opportunity to discuss the
question. If the party fails to do this, the judicial author-
ity will be under no obligation to decide the question.’’
The record reveals that, on the second day of trial,
the court sua sponte raised the issue of the applicable
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standard of proof. The court stated: ‘‘It is this court’s
view that the standard of proof which the plaintiff must
meet is proof by a preponderance of the evidence. I
recognize that other trial courts in the past have applied
the clear and convincing evidence standard. I am aware
of no Appellate or Supreme Court case [subsequent to]
the enactment of the annulment statute which squarely
addresses the issue.
‘‘The court concluded in a prior case that the prepon-
derance of the evidence standard is appropriate based
upon statutory construction in that the annulment stat-
ute is silent as to the applicable standard. And, there-
fore, the court is required to apply the less stringent
standard of preponderance of the evidence.’’ The plain-
tiff’s counsel concurred, and then the following collo-
quy ensued:
‘‘The Court: And, [Defendant’s Counsel], if you dis-
agree with that analysis, I would ask you to, as soon
as possible, bring to the court’s attention some authority
to the contrary.
‘‘[The Defendant’s Counsel]: Your Honor, I—I believe
that your research is superior to mine. And I defer to
your best judgment in that regard.
‘‘The Court: Thank you for that . . . . I’ll share with
counsel that this was one of the very first issues that I
had to address when I first began family matters . . . .’’
Throughout the remainder of the trial, the defendant
did not raise an issue regarding the applicable standard
of proof nor file a posttrial motion to allow the court
an opportunity to address the claim. In its memorandum
of decision, the court applied the preponderance of the
evidence standard, citing precedent and basic princi-
ples of statutory interpretation.15 The defendant now
15
The court noted that it was the plaintiff’s burden to establish the basis
for an annulment and that ‘‘the court must adhere to the language of the
statute. When a statute is silent regarding the standard of proof [to apply
to the evidence], the court must apply the preponderance of the evidence
standard. Stuart v. Stuart, 297 Conn. 26, 34–35, 996 A.2d 259 (2010).’’
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claims, for the first time on appeal, that the court
applied an incorrect standard of proof.
The defendant acknowledges that she did not dis-
tinctly raise this claim of error before the trial court.
She nonetheless claims that the ‘‘ultimate purpose of
issue preservation’’ was achieved by the on the record
statement by the court. The defendant quotes Overley
v. Overley, 209 Conn. App. 504, 268 A.3d 691 (2021),
cert. denied, 343 Conn. 901, 272 A.3d 657 (2022), for
the proposition that ‘‘because the sine qua non of preser-
vation is fair notice to the trial court . . . the determi-
nation of whether a claim has been properly preserved
will depend on a careful review of the record to ascer-
tain whether the claim on appeal was articulated below
with sufficient clarity to place the trial court on reason-
able notice of that very same claim.’’ (Emphasis added;
internal quotation marks omitted.) Id., 513.
The defendant overlooks the undisputed fact that
the court invited the defendant to provide it with any
contrary arguments or authority ‘‘as soon as possible.’’
The defendant’s counsel declined to do so, stating:
‘‘Your Honor, I—I believe that your research is superior
to mine. And I defer to your best judgment in that
regard.’’16 Moreover, in her appellate brief, the defen-
dant concedes that there is an ‘‘absence of any binding
[appellate] authority’’ on that legal issue.
16
We note that the doctrine of induced error is implicated in the present
case. ‘‘[T]he term induced error, or invited error, has been defined as [a]n
error that a party cannot complain of on appeal because the party, through
conduct, encouraged or prompted the trial court to make the [allegedly]
erroneous ruling. . . . It is well established that a party who induces an
error cannot be heard to later complain about that error. . . . This principle
bars appellate review of induced nonconstitutional error and induced consti-
tutional error. . . . The invited error doctrine rests [on principles] of fair-
ness, both to the trial court and to the opposing party. . . . [W]hether we
call it induced error, encouraged error, waiver, or abandonment, the result—
that the . . . claim is unreviewable—is the same.’’ (Internal quotation marks
omitted.) Boone v. Boehringer Ingelheim Pharmaceuticals, Inc., 335 Conn.
547, 567–68, 239 A.3d 1175 (2020). To the extent that the defendant declined
to furnish any legal authority to the court and expressly indicated that she
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Although it is true that the issue of the proper stan-
dard of proof was briefly discussed by the court at trial,
the defendant declined the court’s invitation to weigh
in on that issue and voiced no objection to the court’s
conclusion that the applicable legal standard was the
preponderance of the evidence standard. Rather, she
affirmatively deferred to the court on that issue and
did not raise any objection until this appeal.
Allowing the defendant to now raise the issue after
deferring to the court’s ‘‘best judgment’’ and forgoing
the opportunities she previously had to address it
‘‘would be sanctioning trial by ambush, which we have
repeatedly stated we will not allow.’’ In re David B.,
supra, 167 Conn. App. 444. Accordingly, we conclude
that the defendant failed to preserve her claim, and
induced any error, with respect to the applicable stan-
dard of proof.
In the alternative, the defendant submits that the
plain error doctrine should apply. ‘‘[T]he plain error
doctrine . . . is not . . . a rule of reviewability. It is
a rule of reversibility. That is, it is a doctrine that this
court invokes in order to rectify a trial court ruling that,
although either not properly preserved or never raised
at all in the trial court, nonetheless requires reversal
of the trial court’s judgment . . . for reasons of policy.
. . . [P]lain error review is reserved for only the most
egregious errors. When an error of such a magnitude
exists, it necessitates reversal.’’ (Citation omitted; inter-
nal quotation marks omitted.) State v. McClain, 324
Conn. 802, 813–14, 155 A.3d 209 (2017). ‘‘An appellate
court addressing a claim of plain error first must deter-
mine if the error is indeed plain in the sense that it is
patent [or] readily [discernible] on the face of a factually
would defer to the court’s ‘‘superior’’ research and ‘‘best judgment’’ on the
issue of the applicable standard of proof, she induced the error of which
she now complains.
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adequate record, [and] also . . . obvious in the sense
of not debatable. . . . This determination clearly
requires a review of the plain error claim presented in
light of the record. Although a complete record and an
obvious error are prerequisites for plain error review,
they are not, of themselves, sufficient for its application.
. . . [T]he plain error doctrine is reserved for truly
extraordinary situations [in which] the existence of the
error is so obvious that it affects the fairness and integ-
rity of and public confidence in the judicial proceedings.
. . . [An appellant] cannot prevail under [the plain
error doctrine] . . . unless he demonstrates that the
claimed error is both so clear and so harmful that a
failure to reverse the judgment would result in manifest
injustice.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) Id., 812.
We conclude that the defendant has not satisfied
that burden. At trial, the court explained that it had
concluded ‘‘in a prior case that the preponderance of
the evidence standard is [the] appropriate’’ legal stan-
dard for claims involving § 46b-40. The court also
acknowledged the lack of appellate authority on that
issue. Moreover, in deciding to apply the preponderance
of the evidence standard, the court expressly relied on
Stuart v. Stuart, 297 Conn. 26, 38–40, 996 A.2d 259
(2010).
The defendant’s burden under the first prong of the
plain error doctrine requires proof of ‘‘an error so obvi-
ous on its face that it is undebatable.’’ State v. McClain,
supra, 324 Conn. 820 n.13. On the basis of the record
before us, we conclude that the defendant has not met
that burden. She therefore cannot prevail under the
plain error doctrine.
The judgment is affirmed.
In this opinion the other judges concurred.