Kristen Barber et al. v. Anne Dryer

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Superior Court of Connecticut.

Kristen Barber et al. v. Anne Dryer

CV106010712S

-- July 25, 2011

MEMORANDUM OF DECISION

PROCEDURAL HISTORY

On May 3, 2010, the plaintiffs, Kristin Barber, Shayne Jacobson and Karl Jacobson, filed the present appeal from the order of the Probate Court dated April 13, 2010, pursuant to General Statutes § 45a–186.   The following facts are undisputed.   The plaintiffs are the children, and therefore heirs at law, of George H. Jacobson (the decedent).   The defendant, Ann Dryer, was the wife of the decedent, the conservatrix of his estate and, prior to the decedent's death, possessed a durable power of attorney.   In June 2002, certain sums of money were transferred from accounts solely in the name of the decedent into joint accounts between the decedent and the defendant (the first transfer).   In June 2007, certain sums of money were transferred from a different joint account between the decedent and the defendant into an account solely in the name of the defendant (the second transfer).   At some point subsequent to these transfers, the decedent died.

On April 6, 2009, the defendant submitted an accounting for her actions as conservatrix to the Probate Court.   The defendant also submitted an accounting, dated July 10, 2009, of her actions as the decedent's attorney in fact.   After a hearing, the Probate Court issued an order approving these two accountings on April 13, 2010.   In this order, the Probate Court made the following factual findings:  “The evidence [regarding the first transfer] is simple;  it was done by the [decedent] himself and, without more evidence, it is his acts that control, and allow this transfer.”   It continues:  “As to [the second transfer] [t]his account was originally a joint account, and, if the children of the [decedent] were to prevail on this claim, they would, then be barred [by] reason of the original nature of the account.”

The plaintiffs' argues:  (1) the probate court's decision pertaining to the first transfer was “entirely inconsistent” with a previous order issued by the Probate Court before the decedent's death and (2) that the Probate Court's decision pertaining to the second transfer was incorrect because the reason given by the defendant for this transfer, namely to shelter the decedent's assets from being used to pay for long term care, was simply pretext.1  These arguments shall be addressed in turn.

DISCUSSION

I. The First Transfer

The plaintiffs contend that the defendant improperly transferred certain sums of money from accounts in the name of the decedent alone into joint accounts between the decedent and herself.   Specifically, the plaintiffs contend that the Probate Court's conclusion that the decedent consented to the first transfer is “entirely inconsistent” with a previous order which was issued by the Probate Court before the decedent's death.2  The defendant responds by arguing that this transfer was voluntarily.

The question of whether the decedent consented to the first transfer presents a question of fact over which this court's review is limited.  General Statutes § 45a–186b states, in relevant part:  “In an appeal taken under section 45a–186 from a matter heard on the record in the Court of Probate, the Superior Court shall not substitute its judgment for that of the Court of Probate as to the weight of the evidence on questions of fact.   The Superior Court shall affirm the decision of the Court of Probate unless the Superior Court finds that substantial rights of the person appealing have been prejudiced because the findings, inferences, conclusions or decisions are:  (1) In violation of the federal or state constitution or the general statutes, (2) in excess of the statutory authority of the Court of Probate, (3) made on unlawful procedure, (4) affected by other error of law, (5) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record, or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion ․”

The defendant offered the following testimony before the Probate Court on January 11, 2010.

“Mr. Valardi:  And what was discussed between you and [the decedent] with respect to, if anything, with respect to creating a joint account between you and him?

“Ms. Dryer:  He wanted me to create a joint account.   He wanted me to take over his finances and I said no.

“Mr. Valardi:  Why did you say no?

“Ms. Dryer:  Because it was his money.

“Mr. Valardi:  Okay, but did you ultimately agree to establish a joint account with that money at People's Bank?

“Ms. Dryer:  Yes.”

“Mr. Valardi:  Now, June 6, 2002.   Again, is that one, the People's Bank accounts were made joint with you and [the decedent]?

“Ms. Dryer:  Yes.

“Mr. Valardi:  At that point, when that was done, did you and George have conversations as to necessity or reason for doing so?

“Ms. Dryer:  He wanted me to take over the finances completely.   He didn't want to do it.

“Mr. Valardi:  So at that point, all of the accounts that were previously in his name became, at least with respect to People's Bank, joint accounts with you.

“Ms. Dryer:  Yes.”

“Mr. Williams:  Now, the money was put in the joint account on June, 6, 2002.   Is that right?

“Ms. Dryer:  Yes.

“Mr. Williams:  And that was something that you did at your husband's request?

“Ms. Dryer:  Yes.”

From this evidence, the Probate Court could have reasonably concluded that the decedent knowingly caused his money to be placed in a joint account with the defendant.  General Statutes § 36a–290 creates “a presumption, rebuttable only by clear and convincing evidence, that the establishment of a joint account is evidence of the intent of the named owners to have the proceeds, on the death of one of them, go to the other joint account holder.”  Garrigus v. Viarengo, 112 Conn.App. 655, 662, 963 A.2d 1065 (2009).   Although the plaintiffs' are correct to note that the medical documents referenced in the previous order of the Probate Court might tend to indicate that the decedent was suffering from some degree of mental impairment, this evidence does not require the Probate Court to conclude that the decedent was unaware of the nature or the effect of his actions.   Because it is not within this court's power to substitute its own judgment for that of the Probate Court, the plaintiffs' appeal is denied to the extent it challenges the first transfer.

II. The Second Transfer

The plaintiffs' next argument is that the defendant's decision to transfer certain funds from a joint account between the decedent and the defendant into an account solely in the name of the defendant in June 2007 was improper.   Specifically, the plaintiffs claim that the defendant “engaged purely in self-dealing” and that the reason given by the defendant for her actions, namely, sheltering the funds from the costs of long term care, was simply pretext.

Section 36a–290(a) states, in relevant part:  “When a deposit account has been established at any bank ․ in the names of two or more natural persons and under such terms as to be paid to any one of them, or to the survivor or survivors of them, such account is deemed a joint account, and any part or all of the balance of such account, including any and all subsequent deposits or additions made thereto, may be paid to any of such persons during the lifetime of all of them or to the survivor or any of the survivors of such persons after the death of one or more of them.”

Even if this court were to assume that the actions of the defendant were improper, the plaintiffs have not been prejudiced by the second transfer in any way.   Had the second transfer never occurred the funds would have remained in a joint account between the decedent and the defendant.   Pursuant to § 36a–290(a), those funds would have passed directly to the defendant upon the death of the decedent.   In order for this court to sustain the plaintiffs' appeal it must be shown that “substantial rights of the person appealing have been prejudiced.”  General Statutes § 45a–186b.   Such a standard cannot be reached in the present case because the plaintiffs never had a legal claim to the funds involved.   Consequently, the court also dismisses the appeal to the extent it challenges the second transfer.

Therefore, the appeal from the order of the Probate Court is dismissed.

BY THE COURT,

Richard Burke

FOOTNOTES

1.  FN1. The plaintiffs also argue that the accountings submitted by the defendant, in a more general sense, “did not meet minimum standards of completeness or accuracy.”   The plaintiffs have not, however, cited any legal authority or engaged in any meaningful analysis of this claim.   This court is “not required to review issues that have been improperly presented to this court through an inadequate brief ․ Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.”  (Internal quotation marks omitted.)  Traylor v. State, 128 Conn.App. 182, 185 n.2, 15 A.3d 1173 (2011).   Consequently, the court considers this argument to be abandoned.

2.  FN2. In this second order, dated June 30, 2008, the Probate Court found that the decedent had become unable to manage his own affairs due to a mental disability.   In doing so, the Probate Court referenced certain medical documents indicating that the decedent was having difficulty with memory and was “confused.”   Some of these documents predated the first transfer.

Burke, Richard E., J.

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