Foisie v. Foisie

Citations

• 335 Conn. 525

Syllabus

Pursuant to statute (§ 52-599 (b)), a civil action or proceeding, including a dissolution action, shall not abate by reason of the death of any party but may be continued by or against the executor or administrator of the deceased party, and, if a defendant dies, the plaintiff, within one year after receiving notification of the defendant's death, may apply for an order to substitute the defendant's executor or administrator in the place of the defendant. Pursuant further to statute (§ 52-599 (c) (1)), substitution under § 52-599 (b) is precluded when the purpose or object of the civil action is defeated or rendered useless by the death of a party. The plaintiff appealed from the trial court's denial of her motion to substitute the coexecutors of the estate of R, the defendant and the plaintiff's former husband, pursuant to § 52-599 (b), in place of R. Approximately four years after the marriage of the plaintiff and R had been dissolved, and while R was still living, the plaintiff filed a motion to open the judgment of dissolution on the ground of fraud, claiming that R wilfully had failed to disclose assets he held in offshore accounts. The plaintiff and R stipulated that the judgment could be opened for the limited purpose of conducting discovery regarding the plaintiff's allegations, but, prior to complying with the court's discovery orders, R died. At the time of R's death, the motion to open was pending and the dissolution judgment remained open. In denying the plaintiff's motion to substitute, the trial court concluded that R's death defeated or rendered useless the underlying motion to open the dissolution judgment, and, thus, substitution of the coexecutors as defendants was prohibited under § 52-599 (c) (1). The court reasoned that, if the plaintiff's motion to open were granted, the marriage would be reinstated but would have automatically dissolved on the date of R's death pursuant to statute (§ 46b-40). Accordingly, the court determined, it could not aga