***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
IN RE PROBATE APPEAL OF DOUGLAS MCINTYRE
(AC 43751)
Bright, C. J., and Alvord and Pellegrino, Js.
Syllabus
The plaintiff, individually and as custodian of an account created for the
benefit of his son, D, pursuant to the Connecticut Uniform Transfers
to Minors Act (§ 45a-557 et seq.), appealed to the trial court from the
decree of the Probate Court removing him as the custodian of the
account and naming the defendant, the plaintiff’s former wife and D’s
mother, as the successor custodian. Prior to the dissolution of the parties’
marriage, the plaintiff withdrew funds from D’s UTMA account and
deposited them into a transfer on death account, which the plaintiff
owned and which named D as the primary beneficiary. The plaintiff
also withdrew funds from a UTMA account naming another one of the
parties’ sons, R, as the beneficiary and, with those funds and certain
other funds that he contributed, established two additional transfer on
death accounts, which the plaintiff owned and which named R and the
parties’ third son, respectively, as beneficiaries. Acting on the advice of
counsel, the plaintiff thereafter withdrew funds from each of the transfer
on death accounts to pay personal legal expenses relating to the parties’
postdissolution proceedings. The defendant filed a petition in Probate
Court requesting that the funds the plaintiff removed from D’s UTMA
account be restored, that the plaintiff be removed as the custodian of
the account, and that the defendant be appointed as the successor
custodian. 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 defendant also filed a separate petition with
respect to R’s UTMA account and the Probate Court rendered a similar
decree. The plaintiff appealed to the trial court only from the decree
relating to D’s UTMA account. The trial court affirmed the decree of
the Probate Court to remove the plaintiff as custodian of D’s UTMA
account and further ordered that the defendant should continue as the
successor custodian for the accounts benefitting all three of the parties’
children. On the plaintiff’s appeal to this court, held:
1. The trial court lacked subject matter jurisdiction to make its orders
relating to the custodial arrangements for the UTMA accounts that were
created for the benefit of R and the parties’ third son: because the
plaintiff appealed to the trial court only from the decree of the Probate
Court that related to D’s UTMA account, in determining that the plaintiff
be removed as custodian and that the defendant be allowed to continue
as custodian for the UTMA accounts for the benefit of the parties’ other
two children, the trial court considered issues that were beyond the
scope of the decree of the Probate Court from which the plaintiff
appealed.
2. The trial court improperly placed the burden of proof on the plaintiff to
demonstrate that his removal as custodian was not warranted: pursuant
to Cadle Co. v. D’Addario (268 Conn. 441), the burden was on the
party seeking removal to establish that removal was required to prevent
continuing harm to the interests of the beneficiary, and the trial court’s
attempt to distinguish the present case from Cadle Co. was improper
because D, as the beneficiary of the UTMA account, was in a position
similar to the beneficiaries in Cadle Co., in that he did not have the
right to dictate the identity of the custodian, and the fact that he was
in a position dissimilar to that of the decedent in Cadle Co., who was
able to select the custodian, was irrelevant; moreover, the defendant’s
claim that the trial court determined that she had met her burden and
that the plaintiff failed to produce evidence to refute that which she
had produced was unavailing, as the argument was contrary to the trial
court’s decision, which did not address the defendant’s burden of proof;
furthermore, it was not clear that the trial court’s application of the
incorrect burden of proof was harmless, as its focus in determining that
removal was required was almost entirely on the plaintiff’s past breach
of fiduciary duty and, therefore, it was not clear that the trial court
would have reached the same decision if it had applied the burden of
proof correctly.
Argued April 20—officially released September 14, 2021
Procedural History
Appeal from the decree of the Probate Court for
the district of Northern Fairfield County removing the
plaintiff Ian McIntyre as the custodian of an account
created for the benefit of his minor son pursuant to the
Connecticut Uniform Transfers to Minors Act, brought
to the Superior Court in the judicial district of Danbury
and tried to the court, D’Andrea, J.; judgment affirming
the Probate Court’s decree, from which the plaintiff
appealed to this court. Reversed; further proceedings.
Andrew S. Knott, with whom, on the brief, was Robert
J. Santoro, for the appellant (plaintiff).
Vincent N. Amendola, Jr., for the appellee (defendant
Janine Carbonaro).
Opinion
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 ben-
efit 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 pri-
mary 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 pro-
ceedings that had been initiated by the defendant. Pur-
suant 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 succes-
sor 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 peti-
tions, the plaintiff returned to Douglas McIntyre’s
UTMA account the funds he had withdrawn to fund
Douglas McIntyre’s transfer on death account. On Octo-
ber 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 succes-
sor 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 review-
able. See Premier Capital, LLC v. Shaw, 189 Conn.
App. 1, 5, 206 A.3d 237 (2019) (‘‘subject matter jurisdic-
tion may be raised at any time during the proceedings
. . . including on appeal’’ (internal quotation marks
omitted)). ‘‘We have long held that because [a] determi-
nation regarding a trial court’s subject matter jurisdic-
tion 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.) Labisson-
iere 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 plain-
tiff be removed as custodian and the defendant ‘‘be
allowed to continue as custodian under the UTMA for
the three children . . . .’’ (Emphasis added.) In so con-
cluding, 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 judg-
ment 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 determina-
tion 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 judg-
ment 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 prece-
dent 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., 455.
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., 442–43. 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., 449. 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., 457. 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 extraordi-
nary 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 omit-
ted.) 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 fidu-
ciary 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 confi-
dence [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 the fairness, honesty and integ-
rity in the transaction . . . . In contrast, underlying
the rule that removal is an extraordinary remedy to be
applied sparingly is the recognition that the decedent
has specifically chosen the fiduciary for the specific
purpose of administering his estate and managing the
claims of persons with conflicting interests in the
estate.’’ (Citations omitted; internal quotation marks
omitted.) Id., 459–60.
Our Supreme Court reasoned that, ‘‘although the
decedent has voluntarily entrusted the management of
his estate into the hands of the executor because of
his expertise, knowledge or skill, the creditor has not
voluntarily entrusted the executor with managing its
claim. Thus, the executor’s primary duty is to the estate
itself, and to fulfilling the intentions of the decedent
with respect to the estate. Only secondarily is the execu-
tor’s duty to those with conflicting interests in the
estate, vis-à-vis the decedent, with whom, nevertheless,
the fiduciary is obligated to deal fairly. Thus, although
we have recognized that the executor of an estate has
a fiduciary duty to its creditors . . . that duty does not
rise to the level of the duty owed by a fiduciary to a
principal who voluntarily has placed his confidence and
trust in the fiduciary for a specific purpose.’’ (Citation
omitted.) Id., 460–61. The court concluded that ‘‘the
burden shifting that ordinarily is employed when a
plaintiff has alleged a breach of fiduciary duty does not
apply in removal proceedings. Instead, the burden is
on the party seeking removal to establish that removal
is required to prevent continuing harm to the interests
of the estate.’’ Id., 461.
In the present case, the Superior Court determined:
‘‘After review of all the pleadings, live witness testi-
mony, submitted exhibits, and parties’ posttrial memo-
randa, it is, therefore, the decision of this court that
the plaintiff/appellant has not maintained his burden of
proof on this appeal, therefore, the [Probate Court’s]
decision to remove him as custodian under the UTMA
is affirmed . . . .’’ The Superior Court reached this con-
clusion despite the clear holding in Cadle that the bur-
den of proof rests on the party seeking removal. Cadle
Co. v. D’Addario, supra, 268 Conn. 461; see also In re
Probate Appeal of Cadle Co., 152 Conn. App. 427, 442–
43, 100 A.3d 30 (2014). The Superior Court placed the
burden of proof on the plaintiff apparently because it
concluded that ‘‘Cadle is factually so different, as to
make it inapplicable.’’
In particular, the Superior Court stated that ‘‘Cadle
involved the removal of the executor, handpicked by
the decedent, to control his estate, a decision showing
the decedent’s faith in the selection of executor. That
is a significant difference than what occurred here. Not
only did [Douglas McIntyre] in 2010 not personally
select the plaintiff . . . [he] most certainly had no
knowledge of even the existence of [the UTMA
account]. [His] wishes, unlike that of [the] decedent in
Cadle, could not have been involved in the selection of
the plaintiff . . . [as the custodian].’’ The plaintiff
argues that the Superior Court improperly ‘‘attempts to
distinguish Cadle . . . by arguing that [the beneficiary
of the account] did not choose the plaintiff to be his
UTMA custodian; therefore, the plaintiff should not be
entitled to any special protection of the high burden of
removing a fiduciary.’’ We agree that the Superior Court
improperly distinguished Cadle.
The fact that the beneficiary of the UTMA account
is in a position dissimilar to that of the decedent in Cadle
because the beneficiary did not create the account or
voluntarily select the custodian is irrelevant. Douglas
McIntyre’s interest in the UTMA account is akin to that
of the beneficiaries of the estate in Cadle. Like the
beneficiary of a UTMA account, the beneficiaries of an
estate do not have a right to dictate who the fiduciary
is. That decision is left to the decedent of the estate or
the person who funds the UTMA account. In the present
case, it was decided when the account was created that
the plaintiff would be the custodian.10 The plaintiff, as
the person who established the account, is in a position
similar to that of the decedent testator in Cadle. In both
situations, the person creating the corpus that would
ultimately benefit others chose a person they trusted
to manage those funds. By choosing to create a UTMA
account for Douglas McIntyre, as to which he was the
custodian, as opposed to some other vehicle such as a
trust managed by a third party, the plaintiff, as trans-
feror, voluntarily chose to subject the account he and
his family members funded to the requirements of the
UTMA, including those pertaining to the obligations of
and the removal of the custodian. See General Statutes
§ 45a-557 et seq. It follows, then, that the transferor
selects the custodian for the specific purpose of fulfill-
ing the requirements of the UTMA, the goal of which
is to preserve the property of the minor beneficiary.
See Mangiante v. Niemiec, 82 Conn. App. 277, 282,
843 A.2d 656 (2004) (discussing goal of UTMA). The
custodian does not owe an obligation to an individual
in his or her capacity as a party seeking removal11 that
is higher than the duty that the custodian has to abide
by under UTMA and, thereby, has to the minor benefi-
ciary. See id., 282–83 (custodian of UTMA account owes
fiduciary duty to beneficiary). Therefore, placing the
burden of proof on the party who seeks the removal
of the custodian of a UTMA account is consistent with
the rule that removal is an extraordinary remedy.
Accordingly, we conclude that the Superior Court
improperly placed the burden of proof on the plaintiff
custodian. See Cadle Co. v. D’Addario, supra, 268 Conn.
461 (party seeking removal has burden to establish that
removal is required); see also In re Taylor’s Estate, 5
Ariz. App. 144, 147, 424 P.2d 186 (1967) (party seeking
removal of trustee has burden of proof); Matter of Rose
BB., 243 App. Div. 2d 999, 1000, 663 N.Y.S.2d 415 (1997)
(same); Tomazic v. Rapoport, 977 N.E.2d 1068, 1074
(Ohio App. 2012) (same), review denied, 134 Ohio St.
3d 1485, 984 N.E.2d 29 (2013); Guerra v. Alexander,
Docket No. 04-09-00004-CV, 2010 WL 2103203, *6 (Tex.
App. May 26, 2010) (same), review denied, Texas
Supreme Court, Docket No. 10-0982 (October 21, 2011);
1 Restatement (Third), Trusts § 1, comment (a), p. 6
(2003) (referring to minors’ custodianships as virtual
trusts). Contrary to the Superior Court’s conclusion,
the plaintiff had no burden of proof to maintain.
Significantly, the defendant does not dispute this con-
clusion. She concedes on appeal that it was her burden
to prove that the plaintiff should be removed as the
custodian of the account. She argues that she met her
burden and that the court’s findings make that clear.
In particular, the defendant points to the court’s find-
ings that the plaintiff’s withdrawal of funds from the
account in 2010, his personal use of the funds for years,
and his failure to return the funds until ordered to do
so by the Probate Court ‘‘can be described in [no] other
way than self-serving, intentional acts that ‘[waste] the
estate in such fiduciary’s charge.’ Any other interpreta-
tion strains logic and credulity. Based on this ground
alone, the Probate Court was justified in removing the
[plaintiff] as custodian of the [account].’’ The Superior
Court also described the plaintiff’s conduct as ‘‘self-
serving intentional acts that display a persistent failure
to administer the estate effectively.’’ The court also
stated that removal as the custodian of the account was
not ‘‘ ‘punishment for a fiduciary’s past misconduct’
because the conduct never ended, and would not have
ended, until it was terminated involuntarily by the [Pro-
bate Court’s] order.’’ In addition, the Superior Court
held: ‘‘Even assuming, arguendo, that Cadle is applica-
ble, the criteria to approve removal of a fiduciary to
protect against harm caused by the continuing depletion
or mismanagement of an estate is clearly satisfied. [The
plaintiff], for seven and one-half years, until discovered,
brought to the [Probate Court], and then stopped only
by an order of the [Probate Court], had unfettered
access to the funds in his name, to use however he
chose, and after showing that he had no hesitancy in
using the same for his own benefit. The only logical
conclusion that can be reached is that removal was
required. Any other interpretation strains logic and cre-
dulity. Therefore, Cadle is not controlling [on] this mat-
ter.’’ (Internal quotation marks omitted.)
The defendant argues that, read as a whole, the
court’s memorandum of decision makes clear that the
court concluded that the defendant met her burden to
prove that removal of the plaintiff as custodian was
warranted. She argues that the court’s statement that
the plaintiff ‘‘has not maintained his burden of proof
on this appeal’’ meant that ‘‘the plaintiff did not meet
his burden of proof when he failed to produce evidence
to refute or rebut that of the [defendant].’’ She, there-
fore, concludes that ‘‘[t]here are no grounds to support
the claim that the court shifted the burden of proof
upon the plaintiff in this case.’’ We are not persuaded.
First, we disagree with the defendant that the court’s
conclusion that the plaintiff failed to maintain his bur-
den of proof reasonably can be read to mean only that
the plaintiff failed to produce evidence to rebut the
defendant’s evidence. That is not what the court said.
Furthermore, the court, in its memorandum of decision,
never mentioned that the defendant bore or met any
burden of proof. Finally, the Superior Court took great
pains to distinguish the present case from Cadle. Given
that the key holding at issue in Cadle, as it relates to
the present case, is who bore the burden of proof, we
conclude that the Superior Court, in holding that Cadle
was inapplicable and not controlling, decided that, on
the basis of the facts of the present case, the plaintiff
bore the burden of proof.
Second, we are not convinced that the court’s applica-
tion of an incorrect burden of proof was harmless. See
Papallo v. Lefebvre, 172 Conn. App. 746, 756, 161 A.3d
603 (2017) (applying harmless error analysis to incor-
rect assignment of burden of proof in breach of fidu-
ciary duty case). There is no dispute in the present case
that the plaintiff breached his fiduciary duty to Douglas
McIntyre when he removed funds from the account and
used them for his personal legal expenses. The question
for the court then was whether the defendant proved
that the extraordinary remedy of removal was required
‘‘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.’’
(Emphasis added; internal quotation marks omitted.)
Cadle Co. v. D’Addario, supra, 268 Conn. 457. The Supe-
rior Court’s focus in determining that removal was
required was almost entirely on the plaintiff’s past
breach of fiduciary duty. The court did not discuss the
significance of its factual finding that the plaintiff used
funds from the account for his personal legal expenses
based on the advice of his counsel. The court also did
not discuss whether the plaintiff had properly managed
the account in all other respects. Nor did the court
discuss the evidence establishing that the defendant
was aware of and consented to the withdrawal from
the account while the parties were still married or that
the plaintiff made the withdrawal based on the advice
of his financial advisor.12 Finally, there was evidence
that the plaintiff returned to the account all funds he
had previously withdrawn.
By referencing these facts and evidence, we do not
mean to suggest that the plaintiff’s breach of fiduciary
duty was not significant or egregious. Rather, we are
not persuaded that the Superior Court would have
reached the same conclusion had it applied the burden
of proof correctly. Given that removal is an extraordi-
nary remedy and in light of the countervailing evidence
submitted by plaintiff, ‘‘[t]he court’s error was simply
of such a fundamental nature that the only proper rem-
edy is to reverse the judgment . . . and remand the
case for a new trial . . . .’’ Papallo v. Lefebvre, supra,
172 Conn. App. 756.
The judgment is reversed and the case is remanded
to the Superior Court for further proceedings consistent
with this opinion.
In this opinion the other judges concurred.
1
The UTMA provides for the transfer of multiple types of property to be
managed by a custodian, whom the transferor may designate, for the benefit
of the minor until the minor attains twenty-one years of age. See General
Statutes §§ 45a-557 though 45a-560b. ‘‘[T]he overriding goal of the [UTMA]
is to preserve the property of the minor who, due to her age, [is] unable to
protect her interests fully. To further that goal, the legislature granted the
custodian control over the property of the minor and placed the custodian
under a specific duty to act for the benefit of that minor.’’ Mangiante v.
Niemiec, 82 Conn. App. 277, 282, 843 A.2d 656 (2004).
2
Douglas McIntyre also was named as a defendant, but he did not partici-
pate in this appeal. We therefore refer to Janine Carbonaro as the defendant.
3
The plaintiff also claims that the Superior Court improperly failed to
appoint as the successor custodian the individual whom he had designated
as such. We do not review this claim because it is unclear whether the
Superior Court will reach this issue on remand, and we will not speculate
on how the issue will be addressed if it is reached.
The plaintiff further claims that the Superior Court failed to apply a de
novo standard of review to his claims. Both parties agree and we recognize
that a de novo standard is the proper standard of review to be applied by
a Superior Court when reviewing an order or decree of the Probate Court.
See Kerin v. Stangle, 209 Conn. 260, 264, 550 A.2d 1069 (1988) (‘‘[t]he
function of the Superior Court in appeals from a Probate Court is to take
jurisdiction of the order or decree appealed from and to try that issue de
novo’’). Because we are reversing and remanding the matter for a new trial,
we need not address the issue of whether the Superior Court had applied
a de novo standard of review in its memorandum of decision in the pres-
ent case.
4
Unlike a UTMA account wherein the custodial property is indefeasibly
vested in the minor following a valid transfer of custodian property; General
Statutes § 45a-558h; and wherein the custodian of the UTMA account takes
control of the custodian property and manages it for the benefit of the
minor; see General Statutes § 45a-558i; the property in a transfer on death
account passes to the beneficiary on the death of the account holder. See R.
Folsom & L. Beck, Revocable Trusts and Trust Administration in Connecticut
(2021) § 9.7 p. 110.
5
General Statutes § 45a-557b (a) provides in relevant part: ‘‘Courts of
probate in any district in which the transferor, the minor or the custodian
is resident, or in which the custodial property is located shall have jurisdic-
tion of any disputes or matters involving custodianship under sections 45a-
557 to 45a-560b, inclusive. . . .’’
6
Prior to filing her petition in the Probate Court, the defendant, in the
dissolution action between the parties, sought to open the judgment of
dissolution on the basis of the alleged failure of the plaintiff to disclose on
his financial affidavit three custodial accounts, each of which were held in
the name of one of the parties’ three children and the plaintiff. See McIntyre
v. McIntyre, Superior Court, judicial district of Ansonia-Milford, Docket No.
FA-XX-XXXXXXX-S (May 2, 2017). The defendant sought to manage the
accounts and to have the plaintiff replenish to the accounts the funds that
he had removed and used for litigation expenses. Id. In its May, 2017 decision
denying the motion to open, the trial court, Grossman, J., determined that
each party ‘‘took every opportunity to criticize the other’’ and that ‘‘their
testimony is not reliable or credible.’’ Id. The defendant thereafter filed an
appeal from the dissolution court’s denial of her motion to open. McIntyre
v. McIntyre, Connecticut Appellate Court, Docket No. AC 40454 (appeal
filed May 18, 2017). In her preliminary statement of issues in that appeal,
the defendant contended, inter alia, that the dissolution court erred in
determining that she had not proven that the plaintiff’s failure to disclose
on his financial affidavit the existence of the three transfer on death accounts
that he had owned at the time of dissolution was fraudulent and that she
had not proven fraud despite the fact that the plaintiff had liquidated the
UTMA accounts and placed the funds into transfer on death accounts.
During the pendency of her appeal in the dissolution matter, the defendant
filed the petitions in the Probate Court regarding the plaintiff’s actions
as to Douglas’ and Rolt McIntyre’s accounts. In the present appeal, the
defendant’s counsel stated at oral argument before this court that he did
not bring to the attention of the Probate Court the dissolution court’s denial
of the motion to open. In her motion to extend time to file her appellate
brief in her appeal from the judgment of the dissolution court denying her
motion to open, the defendant stated that if the Probate Court were to
determine that she had proven her UTMA claims, then her appeal from the
dissolution court’s denial of her motion to open would be rendered moot.
Following the October 12, 2017 decree of the Probate Court naming the
defendant as the successor custodian of the account, the defendant withdrew
her appeal on December 7, 2017, from the judgment of the dissolution court
denying her motion to open.
The timing and sequence of the events described in the preceding para-
graphs raise the specter that the defendant has engaged in forum shopping
by seeking a second bite of the apple before the Probate Court because
she was dissatisfied with the judgment of Judge Grossman finding her not
credible and denying her motion to open. Our courts have long discouraged
the practice of forum shopping. See, e.g., Kleen Energy Systems, LLC v.
Commissioner of Energy & Environmental Protection, 319 Conn. 367, 393
n.25, 125 A.3d 905 (2015) (forum shopping results in waste of judicial
resources).
7
General Statutes § 45a-186 (b) provides in relevant part that ‘‘[a]ny person
aggrieved by an order, denial or decree of a Probate Court may appeal
therefrom to the Superior Court. . . .’’
8
In fact, no UTMA account for the parties’ youngest son was ever the
subject of a petition in the Probate Court.
9
General Statutes § 45a-242 provides in relevant part: ‘‘(a) The Probate
Court having jurisdiction may, upon its own motion or upon the petition of
any person interested or of the surety upon the fiduciary’s probate bond,
after notice and hearing, remove any fiduciary if: (1) The fiduciary becomes
incapable of executing such fiduciary’s trust, neglects to perform the duties
of such fiduciary’s trust, wastes the estate in such fiduciary’s charge, or
fails to furnish any additional or substitute probate bond ordered by the
court, (2) lack of cooperation among cofiduciaries substantially impairs
the administration of the estate, (3) because of unfitness, unwillingness or
persistent failure of the fiduciary to administer the estate effectively, the
court determines that removal of the fiduciary best serves the interests of
the beneficiaries, or (4) there has been a substantial change of circumstances
or removal is requested by all of the beneficiaries, the court finds that
removal of the fiduciary best serves the interests of all the beneficiaries
and is not inconsistent with a material purpose of the governing instrument
and a suitable cofiduciary or successor fiduciary is available. . . .’’
10
The court heard conflicting evidence regarding how the account was
funded. The plaintiff testified that the money with which he started the
account came from his grandparents and that the ‘‘vast majority’’ of the
money in the account came from his family. The defendant testified that
her parents may have contributed to the account but expressed a lack of
certainty due to the passage of time. She also testified, referring to her and
the plaintiff, that ‘‘we’’ started the account. Regardless of who contributed
funds to the account, there is no question that the plaintiff was named the
custodian of the account.
11
General Statutes § 45a-559c (f) provides: ‘‘A transferor, the legal repre-
sentative of a transferor, an adult member of the minor’s family, a guardian
of the person of the minor, the guardian of the minor or the minor if the
minor has attained the age of twelve years may petition the court to remove
the custodian under section 45a-242 and to designate a successor custodian
other than a transferor under section 45a-558a or to require the custodian
to give appropriate bond.’’
12
In the section of its memorandum of decision entitled ‘‘Plaintiff/Appel-
lant’s Position,’’ the Superior Court stated that ‘‘[c]learly, the plaintiff/appel-
lant violated the UTMA statutes by closing the accounts and opening the
[transfer on death] account, even when done with the knowledge and consent
of the defendant/appellee and upon the advice of their financial advisor.’’
Although that statement is true and undisputed by the plaintiff, it says
nothing as to whether those circumstances militate against the exercise
of the extraordinary remedy of removal. In rendering judgment ordering
removal, the court did not discuss the evidence submitted as to those circum-
stances.