207 Conn.App. 433
Conn. App. Ct.2021Background
- Parties divorced in 2013; plaintiff (Ian McIntyre) was custodian of UTMA accounts for three children, including Douglas (D) and Rolt (R).
- In 2010 plaintiff moved funds from D’s UTMA into a transfer-on-death (TOD) account naming D beneficiary; plaintiff opened similar TOD accounts for R and the third child using UTMA withdrawals and other funds.
- Plaintiff, on counsel’s advice, later withdrew money from the TOD accounts to pay his personal postdissolution legal expenses; defendant (Janine Carbonaro) petitioned Probate to restore funds and remove plaintiff as custodian for D’s and R’s UTMA accounts.
- Probate Court removed plaintiff as custodian for both D and R and named defendant successor custodian; plaintiff appealed in Superior Court only from the decree as to D’s account.
- The Superior Court affirmed removal as to D and ordered defendant to remain custodian for all three children's UTMA accounts; it also framed the plaintiff as bearing the burden of proof on the appeal.
- The Appellate Court reversed: (1) Superior Court lacked jurisdiction to determine custodial arrangements for accounts not appealed (R and third child), and (2) Superior Court erred by placing the burden to justify removal on the custodian rather than on the party seeking removal (applying Cadle Co. v. D’Addario).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Superior Court had jurisdiction to decide custodianship for UTMA accounts other than Douglas’s (R and third child) | McIntyre: Superior Court could not adjudicate accounts not appealed from Probate | Carbonaro: (conceded) Superior Court only had jurisdiction over Douglas’s account | Held: Superior Court lacked subject matter jurisdiction over R’s and the third child’s accounts; its rulings on those accounts reversed |
| Proper allocation of burden of proof for removing a UTMA custodian | McIntyre: burden rests on party seeking removal to show removal is necessary to prevent continuing harm (Cadle) | Carbonaro: she met burden and plaintiff failed to rebut; court’s wording shows plaintiff bore burden | Held: Court erred in shifting burden to custodian; under Cadle the party seeking removal must prove removal is required to prevent continuing harm; error was not harmless and reversal/remand required |
Key Cases Cited
- Cadle Co. v. D’Addario, 268 Conn. 441 (Conn. 2004) (holding party seeking removal of a fiduciary must prove removal is necessary to prevent continuing harm; burden does not shift to fiduciary in removal proceedings)
- In re Probate Appeal of Cadle Co., 152 Conn. App. 427 (Conn. App. 2014) (applying Cadle allocation of burden in probate appeal context)
- Mangiante v. Niemiec, 82 Conn. App. 277 (Conn. App. 2004) (describing UTMA custodian’s fiduciary duty and UTMA’s purpose to preserve minor’s property)
- Papallo v. Lefebvre, 172 Conn. App. 746 (Conn. App. 2017) (applying harmless-error analysis to incorrect assignment of burden of proof)