In re McIntyre

• Decision Date: 14 September 2021
• Docket Number: AC 43751
• Citation: 263 A.3d 925,207 Conn.App. 433
• Parties: IN RE PROBATE APPEAL OF DOUGLAS MCINTYRE
• Court: Connecticut Court of Appeals

207 Conn.App. 433

263 A.3d 925

IN RE PROBATE APPEAL OF DOUGLAS MCINTYRE

AC 43751

Appellate Court of Connecticut.

Argued April 20, 2021

Officially released September 14, 2021

Andrew S. Knott, Cheshire, with whom, on the brief, was Robert J. Santoro, for the appellant (plaintiff).

Vincent N. Amendola, Jr., West Haven, for the appellee (defendant Janine Carbonaro).

Bright, C. J., and Alvord and Pellegrino, Js.

BRIGHT, C. J.

The plaintiff, Ian McIntyre, individually and as the custodian of an account created pursuant to the Connecticut Uniform Transfers to Minors Act (UTMA), General Statutes § 45a-557 et seq.¹ for the benefit of his son, Douglas McIntyre, appeals from the judgment of the Superior Court denying his appeal from a decree of the Probate Court removing him as the custodian of the account and naming the defendant² Janine Carbonaro as the successor custodian. On appeal, the plaintiff claims that the Superior Court (1) lacked subject matter jurisdiction to make certain orders and (2) improperly placed the burden of proof on him to prove that his removal as custodian was not warranted.³ We agree with both claims.

The following facts, as found by the Superior Court, and procedural history are relevant to our resolution of this appeal. The parties were divorced in 2013, and have three children. The plaintiff was the custodian of a UTMA account that named the parties’ middle child, Douglas McIntyre, as the beneficiary (account). In March, 2010, prior to the dissolution of the parties’ marriage, the plaintiff withdrew funds totaling $16,424.76 from the account and deposited those funds into a transfer on death account,⁴ which the plaintiff owned and which named Douglas McIntyre as the primary beneficiary. The plaintiff also withdrew funds from the UTMA account of the parties’ eldest child, Rolt McIntyre. With these funds and additional funds that he contributed, the plaintiff opened two additional transfer on death accounts, each of which named as the beneficiary, respectively, one of the parties’ remaining two children.

The plaintiff, acting on the advice of his counsel, thereafter withdrew a total of $22,928 from the transfer on death accounts, $7463 of which was withdrawn from Douglas McIntyre's transfer on death account, to pay personal legal expenses relating to postdissolution proceedings that had been initiated by the defendant. Pursuant to General Statutes § 45a-557b (a),⁵ the defendant filed a petition in the Probate Court, requesting that the funds that the plaintiff had removed from the account be restored, that the plaintiff be removed as custodian of the account, and that she be appointed as the successor custodian.⁶ She also filed a petition in the Probate Court seeking similar relief as to the parties’ eldest child, Rolt McIntyre. Following the filing of those petitions, the plaintiff returned to Douglas McIntyre's UTMA account the funds he had withdrawn to fund Douglas McIntyre's transfer on death account. On October 12, 2017, the Probate Court decreed that the plaintiff be removed as the custodian of the account and that the defendant be named as the successor custodian. The Probate Court rendered a similar decree with regard to the account for Rolt McIntyre.

The plaintiff appealed to the Superior Court pursuant to General Statutes § 45a-186⁷ from the decree of the Probate Court with respect to Douglas McIntyre only. He claimed that (1) he did not mismanage the assets, (2) he should not be removed as the custodian of the account, and (3) even if he were removed, then the successor custodian should be the individual whom he had designated, even though he did not make that designation until after the Probate Court rendered its decree. The Superior Court, D'Andrea, J. , affirmed the decree of the Probate Court to remove the plaintiff as the custodian of the account and determined that the defendant should continue as the successor custodian "under the UTMA for the three children ...." This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that, because he had appealed to the Superior Court from the decree of the Probate Court with respect to the account of Douglas McIntyre only, the Superior Court lacked subject matter jurisdiction with respect to the custodial arrangement for the UTMA accounts of the parties’ remaining two children. The defendant agrees that the Superior Court only had subject matter jurisdiction to consider the plaintiff's removal and her appointment as the successor custodian of Douglas McIntyre's UTMA account. We agree.

The plaintiff's claim, which raises the issue of subject matter jurisdiction for the first time on appeal, is reviewable. See Premier Capital, LLC v. Shaw , 189 Conn. App. 1, 5, 206 A.3d 237 (2019) ("subject matter jurisdiction may be raised at any time during the proceedings ... including on appeal" (internal quotation marks omitted)). "We have long held that because [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary. ... Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. ... [A] judgment rendered without subject matter jurisdiction is void." (Citation omitted; internal quotation marks omitted.) Labissoniere v. Gaylord Hospital, Inc ., 199 Conn. App. 265, 275–76, 235 A.3d 589, cert. denied, 335 Conn. 968, 240 A.3d 284 (2020), and cert. denied, 335 Conn. 968, 240 A.3d 285 (2020).

Notwithstanding the fact that the plaintiff appealed from the decree of the Probate Court only as to Douglas McIntyre, the Superior Court concluded that the plaintiff be removed as custodian and the defendant "be allowed to continue as custodian under the UTMA for the three children ...." (Emphasis added.) In so concluding, the Superior Court considered issues beyond the scope of the decree of the Probate Court from which the plaintiff had appealed. "[A] probate appeal ... brings to the Superior Court only the order appealed from. The order remains intact until modified by a judgment of the Superior Court after a hearing de novo on the issues presented for review by the reasons of appeal. ... The Superior Court may not consider or adjudicate issues beyond the scope of those proper for determination by the order or decree attacked. ... The Superior Court, therefore, cannot enlarge the scope of the appeal." (Emphasis added; internal quotation marks omitted.) Marshall v. Marshall , 71 Conn. App. 565, 569–70, 803 A.2d 919, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002).

Accordingly, the Superior Court had subject matter jurisdiction only over the matter of the Probate Court with respect to Douglas McIntyre because that was the only matter from which the plaintiff had appealed. The Superior Court did not have jurisdiction to determine the custodian of any existing UTMA accounts of the parties’ remaining two children because there was no appeal before the Superior Court concerning any UTMA accounts of those children.⁸ Consequently, the judgment of the Superior Court as to those accounts is reversed.

II

The plaintiff next claims that the Superior Court improperly placed the burden of proof on him, rather than on the defendant who sought his removal as the custodian of the account. He contends that in doing so the Superior Court improperly failed to follow the precedent of our Supreme Court in Cadle Co . v. D'Addario , 268 Conn. 441, 844 A.2d 836 (2004) ( Cadle ). We agree.

"When a party contests the burden of proof applied by the trial court, the standard of review is de novo because the matter is a question of law." Id., at 455, 844 A.2d 836.

Our analysis is controlled by the decision of our Supreme Court in Cadle . In that case, the plaintiff, an unsecured creditor of the estate of the decedent, appealed to the Superior Court from the denial by the Probate Court of its motion for an order seeking, inter alia, the removal of both coexecutors of the decedent's estate. Id., at 442–43, 844 A.2d 836. On appeal, the plaintiff creditor claimed that the trial court improperly had placed the burden of proof on it to show why removal of the coexecutors was warranted. Id., at 449, 844 A.2d 836. Our Supreme Court examined whether the following common-law burden shifting scheme was applicable: "Generally ... when a breach of fiduciary duty is alleged, and the allegations concern fraud, self-dealing or a conflict of interest, the burden of proof shifts to the fiduciary to prove fair dealing by clear and convincing evidence." Id., at 457, 844 A.2d 836. After citing General Statutes § 45a-242,⁹ which concerns the removal of fiduciaries by the Probate Court, our Supreme Court explained: "Our case law recognizes that [r]emoval of an executor is an extraordinary remedy designed to protect against harm caused by the continuing depletion or mismanagement of an estate. ... In the absence of continuing harm to the interests of the estate and its beneficiaries, removal is not justified merely as a punishment for a fiduciary's past misconduct." (Internal quotation marks omitted.) Id.

In considering the issue of first impression, our Supreme Court noted that "it is useful to examine the policies underlying the apparently conflicting rules that: (1) the burden of proof is ordinarily shifted to the fiduciary when breach of fiduciary duty is alleged; and (2) removal of an estate's fiduciary will not be ordered except in extraordinary cases to avoid continuing harm to the interests of the estate. Underlying the former rule is the recognition that the fiduciary's principal has voluntarily placed a unique degree of trust and confidence [in the fiduciary, who] has superior knowledge, skill or expertise that is to be exercised on behalf of the principal. ... Accordingly, when the fiduciary has a dominant and controlling force or influence over his principal, or the transaction at issue, the burden shifts to the fiduciary to prove...