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.
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.
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
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
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.
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 ; Ciglar v. Finkelstone, 142 Conn. 432, 434, 114 A.2d 925 ; Weidlich v. First National Bank & Trust Co., 139 Conn. 652, 656, 96 A.2d 547 ; 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 ; Spencer's Appeal, 122 Conn. 327, 332-33, 188 A. 881 ; ... 1 Locke & Kohn, ... [Conn. Probate Practice] § 188.' Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 338 A.2d 497 . `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, 83]." Gaucher v. Estate of Camp, 167 Conn. 396, 400-401, 355 A.2d 303 (1974).
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
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 order of the Probate Court is whether there is a possibility that some legally protected interest which he has in the estate has been adversely affected. O'Leary v. McGuinness, supra, 83. Further, if Harrison's argument were
Although the plaintiff's claim does not concern legally protected interests that he has in the estate; see O'Leary v. McGuinness, supra, 83; we decline to interpret § 45-288 so narrowly as to limit its applicability solely to cases involving an adverse effect upon a direct interest in the probate estate. This court has held that "[w]hile one who bids upon the property of an estate offered for sale has no interest in the property itself, he does have an interest in the proceedings employed by the court to approve the sale. It may be that a party appealing from an order of a probate court often has an interest in the estate itself, as a distributee or a creditor. But [General Statutes] § 45-293 [requiring an appellant from probate to state his interest on the motion for appeal] does not require the interest involved to be solely one in the estate itself." Merrimac Associates, Inc. v. DiSesa, 180 Conn. 511, 517-18, 429 A.2d 967 (1980). Thus, a legally protected interest may derive from the administration of a probate estate. In the instant case, if the plaintiff has a legally protected interest in the proceedings employed by the Probate Court in administration of the minor child's estate, specifically in not having blood taken from his body, we conclude that this interest is a legally protected interest and, thus, a potential subject of aggrievement within the meaning of § 45-288.
The first legally protected interest that the plaintiff seeks to vindicate is the right to resist an intrusion into his body. The existence of such a legally protected interest is established by Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L. Ed.2d 908 (1966). In Schmerber, a police officer directed a physician to take a blood sample from the defendant, who had been
The underlying premise of these decisions is the principle that a person has interests in human dignity and privacy that are protected by the fourth amendment to the United States constitution; Schmerber v. California, supra, 769-70; State v. Acquin, supra, 355; and that these interests are adversely affected by an order to submit to a blood test. We conclude, therefore, that because the plaintiff's constitutionally protected interests in human dignity and privacy were adversely affected by the Probate Court order to submit to a blood grouping test, the plaintiff was aggrieved and could properly appeal the order pursuant to § 45-288.
This first strand of an adverse effect on a legally protected interest is to be found in the very act of puncturing the plaintiff's skin and drawing blood from his
The judgment is reversed and the case is remanded to the trial court with direction to set aside the judgment of dismissal and to proceed with the case according to law.
In this opinion the other justices concurred.
In State v. Grotton, 180 Conn. 290, 429 A.2d 871 (1980), we decided the final judgment issue not considered in Acquin. In Grotton, we granted the state's motion to dismiss the defendant's appeal from an order requiring the defendant to provide specimens of blood, saliva and urine. Id., 295-96. We held that such an order is a discovery order and that "orders relating to discovery do not constitute a final judgment and are not appealable ... because their initial determination does not so conclude the rights of the appealing party that further proceedings cannot affect those rights." Id., 292. We stated that "[t]o the extent that our decision in State v. Acquin... indicates that an order to obtain nontestimonial evidence may be reviewed on direct appeal, we hereby confine that decision to its facts." Id., 293.