Opinion
FSTCV146021200S
08-25-2016
David Cluett, Jr. v. Caryn Gregg
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Kenneth B. Povodator, J.
This is an intra-family dispute relating to a trust instrument created by the parties' late mother. In formal terms, it is a de novo appeal from probate.
The Probate Court decision is attached to the appeal/complaint. The court has done a " copy and paste" of the actual order, to ensure an accurate understanding (and recitation) of the order that is the subject of this appeal. To ensure a true de novo review of the merits, the court has not considered or read the discussion portion of that decision.
Facts and issues
The facts and issues presented by this matter, with few exceptions, are undisputed. The primary issue is interpretation of the operative trust instrument pursuant to which the plaintiff has a right to occupy the subject property. The plaintiff claims that the instrument gives him the right to " sublet" a portion of the property to defray expenses, without trustee approval; the defendant, as one of two successor trustees (the plaintiff also is a successor trustee), claims that the plaintiff only has a right of occupancy but no right to sublet any portion of the premises for his own benefit (without first complying with trust provisions relating to leasing of the premises, which involves consent of the successor trustees).
The court generally adopts the essentially-undisputed facts as stated by the plaintiff in his initial memorandum (#108.00), as well as his statement of the issues:
On March 19, 2008, Gloria P. Lange (" Mrs. Lange"), as grantor and trustee, created a revocable trust by executing The Gloria P. Lange #2 Revocable Trust Agreement (the " Trust").
Under ARTICLE III.B of the Trust, the laws of the State of Florida govern as to the administration and distribution of the Trust property. Mrs. Lange served as the trustee of the Trust during her lifetime, and appointed her children, Caryn C. Gregg [the defendant] and David G. Cluett Jr. [the plaintiff], as successor trustees following her death.
Mrs. Lange died on May 29, 2009, and [the plaintiff and the defendant] now serve as successor trustees of the Trust. [They] are also beneficiaries of the Trust . . .
Mrs. Lange funded the Trust with residential real estate located at 137 Round Hill Road (Lot 18b) in Greenwich, Connecticut which she had owned for many years
[The plaintiff] has resided at 137 Round Hill Road (Lot 18b) since 1998. Since his mother's death in 2009, he has occupied 137 Round Hill Road pursuant to the terms of ARTICLE V.B of the Trust. He pays no rent, as his mother intended, but he pays the real estate taxes, insurance premiums and expenses of ordinary maintenance and repair attributable to the entire property.
Beginning in 2012, [the plaintiff] subleased a portion of 137 Round Hill Road and retained the rent to defray his expenses, as he [claims] his mother intended. [The defendant] claimed that such rent was income payable to the Trust.
On July 1, 2013, [the plaintiff] filed a Petition for Construction of the Trust in the Probate Court for the District of Greenwich, Connecticut. On December 30, 2013, the Greenwich Probate Court issued an order and decree with respect to [the plaintiff's] Petition for Construction and a cross-petition filed by [the defendant] . . . which [order and decree were] mailed to all parties on January 8, 2014. In the [order and decree], the Greenwich Probate Court held, inter alia, that [the plaintiff] did not have a life estate in the Trust property and that any rent he collected is an asset of the Trust. [The plaintiff] filed this de novo probate appeal pursuant to section 45a-186, et seq., of the Connecticut General Statutes.
The plaintiff also reasonably-accurately summarizes the respective positions of the parties:
[The plaintiff] claims that under the terms of the Trust:
a. As contrasted with leasing 137 Round Hill Road as a whole, he is permitted to sublet a portion of 137 Round Hill Road while he exercises his right to occupy the entire property because he is subleasing a portion of his tenancy under the terms of the Trust and applicable Florida law;
b. Subleasing a portion of the property while he occupies 137 Round Hill Road does not require the agreement of his co-trustee; and,
c. The rent he receives from subleasing, as contrasted with rent the cotrustees might receive from leasing the entire property if he did not occupy 137 Round Hill Road, is not Trust income, and therefore he is not required to account to the co-trustee for such rent or to turn over such rent to the successor trustees.
[The defendant] claims that under the terms of the Trust [the plaintiff] does not have a life estate in the property at 137 Round Hill Road [or the equivalent]; he only has a right to occupy the property. [The defendant] therefore claims that [the plaintiff] does not have a right to sublease a portion of the property without her consent and that all rents collected from subleasing the property are Trust assets.
Again, the ultimate issue is whether the trust instrument permits the plaintiff, in his role as occupant of the premises, to sublet a portion of the premises (the apartment) and utilize the revenue to offset his obligation to pay the carrying costs of the property (including taxes and maintenance).
The parties have identified most of the relevant provisions of the trust instrument:
Article III of the Trust contains the following provisions:
B. Each Trust established under this instrument shall be deemed to have its situs in the State of Florida, and the laws of the State of Florida shall govern as to the administration and distribution of the Trust property.
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G. Grantor nominates, constitutes and appoints CARYN C. GREGG and DAVID CLUETT as Successor Trustees of all Trusts created herein to serve upon Grantor's death or if Grantor becomes incapable of managing her own affairs.
Article V of the Trust contains the following provisions:
B. If any interest in real estate is held as trust property, Grantor's son, DAVID CLUETT, shall have the right to occupy such residential real estate rent free during his life subject to the payment by him of the real estate taxes, insurance premiums and expenses of ordinary maintenance and repair attributable to the real estate interest. In the event that capital improvements are sought by DAVID CLUETT, he shall first obtain the approval of his sister, CARYN C. GREGG, who shall equally share in the costs of such capital improvements with DAVID CLUETT. The Successor Trustees in their discretion may, upon request of DAVID CLUETT, sell, exchange or lease any interest in residential real estate under such terms as the Successor Trustees determine. If a sale is made, the Successor Trustees may in their discretion purchase another residential real estate in its place of comparable or lesser value which shall be owned by the trust upon the same terms as the interest originally held. Any difference between the sale price of the interest sold and the purchase price of the interest purchased shall be added to the principal of the trust estate. Upon first to occur of (a) my son's death, or (b) such time as he notifies the Successor Trustees in writing that he no longer desires to occupy any real estate held hereunder, or (c) such time as my son's personal physician and an independent physician determine that by reason of physical or mental incapacity my son is no longer able to do so, any such interest in real estate shall be sold and disposed of as part of the principal of the trust estate free of the right of occupancy provided hereunder. No person need inquire into the authority of the trustee to sell, mortgage, lease or otherwise deal with any interest in real estate held hereunder and the Successor Trustees shall incur no liability and have no responsibility for any loss that may result from acting in accordance with this Article.
C. Upon the sale of any real estate interest mentioned in paragraph B above (and no replacement real estate interest purchased), the proceeds of the sale shall be added to the trust property and the remainder of the trust estate and property, real, personal and mixed, of whatsoever kind and nature and wheresoever situate, shall then be distributed to Grantor's son, DAVID CLUETT, and the Grantor's daughter, CARYN C. GREGG, in equal shares per stirpes.
Article VI (D) of the Trust authorizes the Successor Trustees
[t]o exchange, sell, lease, or otherwise dispose of any interest in real or personal property, in public or private transactions, after obtaining the consent of Grantor's son DAVID CLUETT, and for such purposes to employ brokers and agents and to pay them reasonable compensation.
One of the few facts upon which the parties do not agree relates to renovations of an apartment located on the subject premises (approximately 500 sq. ft. of the 3, 000 sq. ft. living area). The plaintiff contends that the purpose for the renovations had been to allow for the anticipated subletting of the apartment by the plaintiff, in order to defray overall expenses associated with his occupancy of the premises. The defendant, on the other hand, contends that the purpose of the renovation had been to provide separate but updated residential accommodations for their mother, when she was visiting/living (part-time) in Connecticut. Related, the plaintiff contends that their mother had been aware of the intentions of the plaintiff with respect to renting a portion of the premises to defray the costs.
The only witnesses to testify were the plaintiff and the defendant. Both sides filed pre-trial briefs as well as post-hearing memorandum.
Discussion
The court is charged with the task of making a de novo determination of the plaintiff's right to sublet a portion of the premises, for his own benefit, under the operative trust document/provisions. This, in turn, requires the court to interpret the trust instrument and interpret its provisions as applicable to the specific situation before the court. For a number of interrelated reasons, the court cannot conclude that the plaintiff established that he is entitled to sublet a portion of the premises and keep the proceeds for his own use/benefit.
The court is being asked to construe and apply the provisions of a trust instrument, and the parties are the successor trustees (their mother having been the original grantor and trustee). The rules of construction are well-established.
" If a [trust instrument] is unambiguous within its four corners, intent of the parties is a question of law requiring plenary review . . . Where the language of the [trust instrument] is clear and unambiguous, the [instrument] is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . [T]he issue of intent as it relates to the interpretation of a trust instrument . . . is to be determined by examination of the language of the trust instrument itself and not by extrinsic evidence of actual intent . . . The construction of a trust instrument presents a question of law to be determined in the light of facts that are found by the trial court or are undisputed or indisputable. It is axiomatic that [a court] cannot rewrite . . . a trust instrument." (Internal quotation marks and citations, omitted.) Heath v. Heath, 150 Conn.App. 199, 203-04, 90 A.3d 362, 365 (2014).
Recognizing that the trust instrument provides that Florida law governs, the plaintiff relies upon a Florida decision containing similar language: In re Estate of Barry, 689 So.2d 1186, 1187-88 (Fla. 4th DCA 1977).
The trust instrument provides that Florida law controls. Florida law is essentially the same on this standard--similar language is to be found in In re Estate of Barry, 689 So.2d 1186, 1187-88 (Fla. 4th DCA 1977) (and both parties cite the case for this foundational analytic proposition).
The trust instrument provides that the plaintiff can " occupy" the premises. The plaintiff contends that the instrument was drafted by counsel in Florida. At times, the plaintiff contends that it was intended that he have a life estate in the premises although he acknowledges that the instrument does not so indicate. In his post-hearing brief (#113.00 at page 8), he backs off slightly, claiming that " [h]e certainly believes that his mother intended him to have a life estate in the property . . . but is only claiming in this probate appeal that it was his mother's intention in the Trust to allow him to sublease the apartment in the residence he occupies and use the rent to defray his expenses.
The trust instrument does not refer to a life estate or anything synonymous with such a term, but rather gives the plaintiff the right to " occupy" the premises. If it had been the intention of their mother to give the plaintiff all of the rights and prerogatives of a life tenant, it would be surprising that retained counsel, drafting the instrument, would use such an imperfect and imprecise term as " occupy." A bare right to reside on the premises, however, would require no legal term of art and creates no inconsistency with any of the other provisions in the instrument.
The verb " occupy" and its variants (occupant, occupancy) vary in meaning, particularly as between legal applications and more colloquial concepts.
As noted by the defendant Black's Law Dictionary defines " Occupancy" as the " [p]eriod or term during which one owns, rents or otherwise occupies property."
An " Occupant" is " one who has possessory rights in, or control over, certain property or premises." Id.
Following the signing of the Lease Agreement the defendant took possession of and began to occupy the Premises. The defendant was given the keys and began to make improvements, which improvements were authorized by the Lease Agreement. Paul Gagliardi, the Chief Financial Officer for the defendant testified that the defendant hired planners and construction crews to take control of the space and fit it for operation. The defendant purchased furniture and signs for the office and began demolition work.
Most importantly, the defendant paid and the plaintiff accepted rent for the Premises. Further, it would have been futile to fully occupy the Premises without a certificate of occupancy. For all of these reasons this Court concludes that the defendant did occupy the Premises, and, therefore, did not waive its right to enforce the violation of warranties that were made by the plaintiff. Estate of Owens v. CTRE, LLC, No. CV0750136505, 2009 WL 2961655, at *2 (Conn.Super.Ct. Aug. 12, 2009), aff'd, 123 Conn.App. 61, 998 A.2d 1285 (2010).
Dictionary definitions include " [t]o dwell or reside in (an apartment, for example)" (American Heritage Dictionary of the English Language, Fifth Edition); " 1. to have, hold, or take as a separate space; possess, reside in or on, or claim . . . [; ] 2. to be a resident or tenant of; dwel [; ] 7. to take or hold possession." (Random House Webster's College Dictionary).
In very rough terms, then, usage of the term " occupy" in a legal/technical sense gives significant weight or consideration to the existence of rights (such as based on a lease), whereas the colloquial or common usage focuses more on actual presence on the premises. (Even then, the technical use may be context-sensitive; see, e.g., Planning & Zoning Commission v. Karbownik, No. 537443, 1998 WL 525473 (Conn.Super.Ct. Aug. 13, 1998), wherein the definition of " seasonal occupancy" appears to be concerned only with actual use (" Section 2.2 of the Lebanon Zoning Regulations defines seasonal occupancy as the living in and/or housekeeping in a dwelling for the period from May 1 to November 1 . . .")
The defendant cites, inter alia, a Florida case in which it was held that the right to occupy (and live in) premises, under a similar trust arrangement, was an interest that was significantly less than a life estate or tenancy for life, Janien v. Janien, 939 So.2d 264 (Fla.Dist.Ct.App. 2006). The only impediment to the decision being virtually dispositive is that the Florida court technically was applying Massachusetts law, at least in part. (There is no suggestion, however, that the result would have been different if it had been decided based solely on Florida law.)
Plaintiff seemingly is seeking to create his own hybrid interest in real property. The instrument does not say that he has a life estate in the property, or that he is a life tenant, or that he possesses some right that is subject to partial transfer; to the contrary, the plaintiff seemingly is trying to avoid pushing the court to make a determination at that level, explicitly disclaiming any intent to have the court make such a determination. The implicit hybrid definition being advanced is that so long as the plaintiff physically occupies (lives in) a portion of the premises, he has the full range of rights associated with a more formal (life) tenancy with respect to the remainder of the property, including the right to sublet that physically unoccupied portion of the property.
Again, the plaintiff does not put his position in such terms, but that is the practical net effect of his position before the court. However, to state it in such terms is to force recognition of the untethered nature of that position with respect to the actual trust instrument and with respect to any known/identified concept of occupy/occupancy.
Related, the defendant correctly points out the timing of the renovations of the apartment and the creation of the trust instrument. The trust instrument is dated March 19, 2008, and the renovations, according to testimony, took place around 2006. If, as claimed by the plaintiff, the purpose for the renovations had been to facilitate rental of a portion of the premises, it becomes all the more remarkable that the trust instrument, drafted two years later, contains not a whiff of a provision contemplating such an option being given to the plaintiff. To the contrary, as discussed below, such an option is inconsistent with the apparent goal of other provisions.
Although the plaintiff claims that it is not necessary for him to argue that he has the full rights of a life tenant, and that he only is contending that he has the right to sublet the apartment, he does not point to anything in the instrument that would seem to allow such a line--any line--to be drawn. In other words, if his right to occupancy encompasses a right to sublet, why is that right to sublet limited only to a portion of the premises (the apartment) as opposed to the entire premises? Such a broad contention would conflict with provisions relied upon by the defendant, discussed below, but even more narrowly, how would that interpretation preclude the plaintiff from moving into the apartment (instead of renting it to a third party), and subletting the main portion of the premises, potentially not only covering expenses but actually generating a net profit to him? This is subtly but nonetheless non-trivially inconsistent with the claim that it was anticipated that the apartment might be sublet--there is nothing in the instrument even suggestive of such a possible limitation on the right to sublet a portion of the premises so long as the plaintiff continued to reside in (occupy) at least a portion of the premises.
To be sure, the plaintiff does not ask the court to declare that he possesses the right to lease the entire premises, and claims that that limitation makes the provision quoted above inapplicable. Any claim of an implicit life tenancy/life estate--and the right to sublet is effectively a variation on that concept, as it implies rights beyond actual physical occupancy--would seem to conflict with the above-quoted provision relating to " lease [of] any interest in residential real estate." Specifically, if the plaintiff had a de facto life estate such that he could sublet the entire premises, why would there be any provision relating to the power of the Successor Trustees to lease the property, and especially having such authority triggered by a request from the plaintiff (who, as already identified, would have a right to sublet the property on his own authority)? Drilling down even further, if the plaintiff were intended to have authority to sublet the entire property, solely for his own benefit, why would there be a provision whereby he could ask the Successor Trustees to lease the entire property, which would afford him only a share of the proceeds of the transaction (i.e. revenue/proceeds to be shared with the defendant)? In other words, necessarily implied by a claim that " occupy" is not limited to a right of physical presence is a claim that the plaintiff has something akin to a life estate or life use, especially as to the right to assign (sublet) his interest in a portion of the premises.
Returning to the narrower claim actually presented, a further problem with a claimed right to sublet is the likely non-congruence of terms. The trust provides for three alternate bases for termination of the plaintiff's right of occupancy--his death, his disclaimer of a desire to continue to occupy the premises, or medically-certified incapacity (physical or mental). Unless a lease purporting to sublet a portion of the premises incorporated a provision subject to those bases for termination, there would be a substantial possibility (at some point) that the term of the lease would exceed the term of the occupancy allegedly authorizing/allowing the subletting of the property.
The defendant points to other provisions in the trust instrument, especially provisions expressly addressing the topic of the procedure for transfers of interests in real property. " If any interest in real estate is held as trust property . . . [t]he Successor Trustees in their discretion may, upon request of DAVID CLUETT, sell, exchange or lease any interest in residential real estate under such terms as the Successor Trustees determine."
An additional relevant provision provides: " No person need inquire into the authority of the trustee to sell, mortgage, lease or otherwise deal with any interest in real estate held hereunder and the Successor Trustees shall incur no liability and have no responsibility for any loss that may result from acting in accordance with this Article."
There appear to be additional inconsistencies between the instrument and the position taken by the plaintiff. In addition to Article VI(D), quoted above, which gives the trustees the authority to " lease . . . or otherwise dispose of any interest in real . . . property . . . after obtaining the consent of [the plaintiff], " there are provisions limiting the rights of the plaintiff and defendant with respect to their status as beneficiaries rather than successor trustees.
Article VIII contains spendthrift provisions, and provides, in Article VIII (A), that
[n]o person having a beneficial interest under this instrument may voluntarily or involuntarily alienate, anticipate, assign, encumber, pledge, sell, or otherwise transfer all or any part of that beneficial interest in trust income or principal, except pursuant to the powers granted herein to a point, disclaim and release.
See, also, Article V (D) which provides: " The interest of any beneficiary in either the principal or income shall not be subject to the claims of any creditor, any spouse for alimony or support, or others, or to legal process and shall not be voluntarily or involuntarily alienated or encumbered."
The plaintiff's right of occupancy would appear to constitute a beneficial interest under the instrument (especially if it is subject to being sublet), and subletting a portion of the premises would seem to constitute a voluntary transfer of rights under the instrument, specifically the right to occupancy. If the plaintiff can transfer such rights voluntarily, would/could that interest be subject to encumbrance by a creditor involuntarily, thereby negating the purpose of Article VIII? More basically, wouldn't such a transfer necessarily violate the terms of Article VIII?
The language in Article VIII (A) immediately following the quoted language above provides: " No beneficial interest under this agreement shall be subject to being taken or reached by an attachment, levy, writ or other legal or equitable process to satisfy any claim against, or obligation of, the person having that interest, and no such interest shall be subject to control or interference by any other person. No attempt to dispose of, or to take or reach, any such interest in violation of this spendthrift provision shall be valid or given any effect by any Trustee."
The impropriety of the plaintiff's approach is emphasized by consideration of the language and intent of Article VIII(C) relating to restrictions on exercise of discretion by individual trustees. In an effort to preserve enforceability of the spendthrift provisions, a trustee is prohibited from exercising any discretion relating to that individual's status as a beneficiary. In choosing to sublet a portion of the property he occupies and collecting rents generated by that trust property, and then using such money to satisfy his personal obligation to pay for the maintenance of the property, the conduct seemingly violates that proscription. The obvious purpose is to prevent any breach of the separation between beneficiary and decision-maker which might undercut the spendthrift provisions, yet the implicit response/claim that the plaintiff is not acting as a trustee in subletting the apartment only exacerbates the lack of separation.
Note, too, that during the life of the initial grantor/trustee, she had total discretion with respect to disposition of the property, subject only to obtaining consent from the plaintiff (Article VI (D). The plaintiff's interpretation of his right of occupancy--and similar language is used both before and after the death of the initial Grantor/Trustee (except that afterwards, he is responsible for carrying costs including taxes and maintenance)--seems to implicate different rights before and after such death. Without any explicit assignment of additional rights or powers, the plaintiff claims that after the death of his mother, he could initiate the process of subletting (leasing) a portion of the premises-notwithstanding the presumptive transfer of all of her powers to the successor trustees which includes the defendant. In other words, although the authority of the original unitary grantor/trustee devolved to the two substitute trustees upon her death (to plaintiff and his sister, the defendant), the plaintiff claims a right to act on his own without co-trustee consent.
Note that this provision is somewhat illusory insofar as the instrument gives the grantor the unlimited right to revoke or amend the instrument (subject to being done with the formality of a Florida will) and gives the original grantor the right to withdraw assets (principal) upon written demand to the trustee (initially, herself); see, Article II. Thus, if consent were to be requested and denied, the grantor could have amended the instrument to delete the need for consent from the plaintiff.
On a more factual basis, the court does not find credible the claim that the renovations to the apartment portion of the premises were solely for the purpose of allowing the apartment to be rented by the plaintiff, in turn for the purpose of defraying carrying costs. The court finds credible the defendant's contention that at least part of the reason for such undertaking was to provide an improved temporary residence for the initial grantor/trustee--the parties' mother--if and when she chose to visit the area for some period of time. That is consistent with the interpretation of the instrument language discussed above; the plaintiff's position finds no support in any of the provisions of the instrument relating to use or transfers of interest(s). The fact that there was separate billing for electric service only minimally supports the plaintiff's position--it would be consistent with " someone else" living in the apartment (which historically had happened, in a variety of circumstances) but does not necessarily answer the question of who might occupy the apartment in the future and subject to what approval process.
The plaintiff claims that Florida law authorizes his effort to sublet the property, citing (and attaching to his brief) an excerpt from 34 Fla. Jur.2d Landlord and Tenant § 154. The provision does describe a right to sublet but not in these circumstances. The first paragraph of the attachment recites the circumstances in which the described right to sublet exists--" In the absence of restrictions thereon by the lease, a tenant under a lease for a definite period may sublet . . ." The second paragraph is no more helpful: " In an action involving the interpretation of a sublease provision in a commercial lease agreement . . . This case does not involve a lease much less a lease for a definite period--it is a trust agreement, changeable at the will of the original grantor during her life, and allowing occupancy of the premises subject to three conditions for termination. None of the conditions for termination involves a fixed or definite period, and the affirmative requirement of occupancy by the plaintiff makes that unavoidably clear. This case certainly does not involve a commercial lease. Perhaps simplistically, the plaintiff fails to bridge the gap between a trust instrument drafted by a mother giving her son the right to occupy property, and a lease.
In sum, then, the court is satisfied that the right to occupy the premises was intended to be limited to the concept of residence/dwelling, rather than a more expansive (undefined) set of rights. There is nothing in the instrument suggesting any right to transfer or assign rights associated with the right to occupy, and the combination of a claimed right to transfer a right of occupancy of the apartment and the correlative right to receive personal revenue for that transfer conflicts with the spirit if not letter of the spendthrift provisions and transfer provisions set forth in the trust.
Relief
The Probate Court entered the following order (which is the basis for this appeal):
NOW, THEREFORE, IT IS ORDERED AND DECREED THAT:
1. The Petitioner, David G. Cluett, Jr., has the right to occupy the Trust Property pursuant to the Trust.
2. The Petitioner's occupation of the Trust Property does not create a life estate in said property pursuant to C.G.S. [§ ]52-98 and Fla. Stat. § 736.0201.
3. The Petitioner does not have the authority to rent the Trust Property without the agreement of the Co-Trustee pursuant to Article V.B. of the Trust.
4. The Petitioner is ordered to account to the Co-Trustee for any rent collected from the portion of the Trust Property leased by the Petitioner.
5. The Petitioner is further ordered to turn over the rents collected by the Petitioner to the Successor Trustees and it is decreed that such rent collected shall be held by the Trust pursuant to the terms of the Trust subject to any agreement that may be reached by both Trustees.
As discussed in the main portion of this decision, the court rejects the plaintiff's claim that he is entitled to sublet a portion of the subject property, utilizing the proceeds to defray the costs associated with his occupancy of the premises. Implicitly, then, this court's decision is a reaffirmation of the above order of the Probate Court.
The defendant, however, affirmatively claims a right to attorneys fees, based on applicable Florida law. That affirmative claim was asserted in the defendant's answer, and discussed in her post-hearing submissions. The court will quote the discussion in the defendant's post-hearing reply brief, as that argument seems to frame the issue appropriately.
Finally, at the end of his Post-Trial Memorandum, David argues that this Court does not have jurisdiction to award Caryn the attorneys fees and expenses she incurred in the Probate Court and on this appeal because the Probate Court did not make any findings regarding attorneys fees and expenses, and Caryn did not file a cross appeal. David's argument mischaracterizes this appeal. A probate appeal is not an appeal in the traditional sense. It is a trial de novo in the Superior Court. The Superior Court is not confined to the record that was made in the Probate Court, and is not limited the relief that was sought or granted in the Probate Court in deciding what relief should be granted in the Superior Court. The relief granted in the Superior Court should be based upon the record that was made and relief sought in the Superior Court. Caryn sought the attorneys fees and expenses she incurred in the Probate Court and the Superior Court from the outset of this appeal in the Superior Court, and provided the Superior Court with legal authority for granting this relief at page 8 of her Post-Hearing Memorandum.
As stated at the beginning of David's Post-Trial Memorandum, the determination of this matter is governed by Florida law, not Connecticut law. As set forth in Caryn's Post-Hearing Memorandum at 8, she is entitled to the attorneys fees and expenses she has incurred on this appeal and in the Probate Court under Section 736.0709 of the Florida Statutes. Therefore, this Court does have the authority to award them to her.
Out of context, most if not all of what the defendant argues is true. Unfortunately, the defendant somewhat conflates substance and procedure in a manner that the court believes leads to an incorrect result.
The defendant does not appear to challenge the contention of the plaintiff that there was no claim for attorneys fees presented to the Probate Court, and certainly that the Probate Court did not enter any order relating to attorneys fees (see order, quoted above). The defendant further does not and cannot challenge the absence of a " cross-appeal" by which the defendant formally claimed that the Probate Court erred in not awarding attorneys fees to her. Essentially, then, the defendant argues that because this appeal is a de novo proceeding, she has the right to assert new claims that were not presented and adjudicated in the original Probate Court proceedings. That is where the court believes there is a conflation between substance and procedure.
" The standard of review in probate appeals is well known. In a probate appeal . . . the Superior Court's jurisdiction is statutory and limited to the order appealed from. The issues presented for review are those defined in the reasons of appeal. The Superior Court cannot consider or adjudicate issues beyond the scope of those proper for determination by the order or decree attacked. This is so even with the consent of the parties to the appeal because the court has subject matter jurisdiction limited only to the order or decree appealed from. The Superior Court tries the questions presented to it de novo, but in so doing it is . . . exercising a special and limited jurisdiction conferred on it by the statute authorizing appeals from probate." (Internal quotation marks and citations, omitted.) Goodwin v. Colchester Prob. Court, 162 Conn.App. 412, 426, 133 A.3d 156, 164-65 (2016).
Perhaps simplistically, this is consistent with, if not mandated by, the notion that this proceeding is an " appeal" rather than an independent or plenary proceeding. Again, the defendant does not dispute the contention that the fee issue was not presented to the Probate Court such that there is nothing for this court to review in an appellate sense, de novo or otherwise.
The fact that Florida law may provide a trustee with a substantive right to be reimbursed for expenses does not implicate the need for orderly presentation of issues, particularly when, as in the quoted passage, this court has a " special and limited jurisdiction." This court cannot address the claim for attorneys fees on the merits, given the limited jurisdiction being exercised and the absence of a necessary predicate, i.e. initial presentation of that claim to the Probate Court.
Accordingly, the court cannot award any monetary compensation (reimbursement) to the defendant.
Conclusion
Presumably in creating the subject trust, the original grantor (the parties' mother) had hoped to ensure an orderly and peaceable disposition of her assets. Unfortunately, her presumed wishes did not come true.
The court has concluded that there is nothing in the trust instrument that authorizes the plaintiff to sublet or otherwise assign any rights with respect to any portion of the property in his capacity as " occupant" of the premises. There is nothing in the trust instrument that authorizes him to obtain any compensation or revenues derived from the property, in an individual capacity, and the spendthrift provisions of the instrument prohibit any such direct receipt of funds. In order to preserve that spendthrift quality, the instrument requires funds received to go into the trust corpus, rather than directly to any beneficiary (the plaintiff or the defendant), and the spendthrift provisions also prohibit any exercise of discretion by a successor trustee with respect to an aspect of his/her status as beneficiary. In other words, there is nothing authorizing what the plaintiff seeks to do, and numerous reasons why his proposed conduct is inconsistent with, if not overtly violative of, other provisions in the trust.
The court recognizes that the factual situation changed upon the death of the parties' mother. While she was alive, the plaintiff was not responsible for carrying costs (taxes, maintenance, etc.) as a condition for occupying the property; once their mother died, that obligation did become operative and at least potentially burdensome. The " problem" is that the language of the instrument expressly imposes that burden but there is no language reasonably susceptible of interpretation as authorizing subletting of the premises, and there is much in the language of the instrument pointing in the opposite direction. The court cannot accept the implied argument of the plaintiff that occupancy takes on a more flexible meaning after the death of the original grantor/trustee.
Conversely, the defendant does not appear to dispute the contention that the claim for attorneys fees (and other costs) was not presented to the Probate Court and this court does not have jurisdiction to entertain wholly new claims presented for the first time on appeal.
Accordingly, the court reaffirms the probate court decision:
1. The [plaintiff] has the right to occupy the Trust Property pursuant to the Trust.
2. The [plaintiff's] occupation of the Trust Property does not create a life estate in said property pursuant to C.G.S. [§ ]52-98 and Fla. Stat. § 736.0201.
3. The [plaintiff] does not have the authority to rent the Trust Property without the agreement of the Co-Trustee pursuant to Article V.B. of the Trust.
4. The [plaintiff] is . . . to account to the Co-Trustee for any rent collected from the portion of the Trust Property leased by the [plaintiff].
5. The [plaintiff] is . . . to turn over the rents collected by the [plaintiff] to the Successor Trustees and . . . such rent collected shall be held by the Trust pursuant to the terms of the Trust subject to any agreement that may be reached by both Trustees [or otherwise used or disbursed in accordance with the trust agreement].
The court denies the application of the defendant for reimbursement of attorneys fees and/or other costs that were (may have been) incurred in defending the appeal to the Probate Court as well as this proceeding.