Opinion
CV146045533S
03-02-2016
David Eder v. Appeal From Probate
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Thomas J. Corradino, Judge Trial Referee.
This matter involves an appeal from a decision of the New Haven Probate Court which held that the remainder beneficiaries under a Trust set up in 1991 included not only the biological child of the settlor of the Trust, John Eder, but also two adult children adopted by John Eder in 2010.
The court will first discuss the language of the Trust which is important to the decision to be made by the court. It will then briefly set forth the claims made by David Eder and the factual background of those claims and the relevant state statutes that have a bearing on this case and possibly the issues raised.
I
(a)
The Trust was set up in October 1991 with John Eder as its grantor or settlor. The Trust was to terminate " upon the twentieth (20th) anniversary of the date on which the property described in Schedule A (attached to Trust document) is transferred to this Trust." The terms of the Trust provided that John Eder was to receive $114,000 per year and after 20 years the Trust was to be terminated and trust assets were to be distributed per Article I paragraph 6 which in relevant part stated: " Distribution Upon Termination: Upon the termination date, the Trustees shall divide the trust property, as it shall then exist, into separate, equal shares, so as to provide one share for each child of the grantor then living, and the share so allocated to each said child shall be paid to him or her absolutely. In the event that there are no children of the grantor living at the time the Trustees are directed to dispose of the trust property in accordance herewith, the Trustees shall distribute the Trust Property to the estates of the deceased children of the grantor, in equal shares, if there are any then living lineal descendants of the grantor, or, if there are no living lineal descendant of the grantor, the property shall be distributed to The Sidney and Arthur Eder Foundation, Inc., to be its absolutely."
Article XIII of the trust is entitled " Definitions" and in subsection (1) it states:
(1) Lineal Descendants: The term " lineal descendants" used anywhere in this Trust Indenture shall mean child, grandchild, great grandchild, etc., whether so related by blood or legal adoption, including any of the aforesaid born or adopted after the signing of this Trust Indenture. The grantor's only living child is David Eric Eder.
Although Article XIII, as noted, in subsection (1) wherein " lineal descendants" is defined states that at the time of the trust's creation David Eder is the Grantor's " only living child, " other sections of the trust contemplate the Grantor, John Eder may have other children at the time of the termination of the trust twenty years hence--see previously quoted language of Article I, subsection 6. There it says upon termination distribution shall be made " for each child the grantor then living." Article XII states that " This trust is irrevocable and the Grantor shall have no right whatsoever to alter, amend, revoke, or terminate the trust created hereunder, in whole or in part." It then goes on to say that the trust and the distributions provided for therein shall not be deemed " to discharge or relieve the grantor, his children or such children's spouses, from their obligation to support any dependent of theirs."
Another provision of the Trust that should be noted is set forth in the first sentence of Article X which states, after the heading " Governing Law, " " this Trust Indenture has been accepted by the Trustees and its validity, construction, and all rights thereunder shall be governed by the laws of the State of Connecticut."
(b)
The operative facts which engendered this appeal will now be briefly discussed. The court will discuss the facts in more detail when it addresses legal issues raised in the appeal. The trust was to be terminated on October 11, 2011. The settlor, John Eder, had one biological child, David Eder, but on June 30, 2010 John Eder, in the state of Massachusetts, adopted two adults, Sacha and Mischa Richter. On November 3, 2011 the trustees brought an application to Probate Court for determination of the Trust's beneficiaries. Probate Judge Keyes said in his opinion: " At issue is whether the settlor's adopted children fall within the Trust's class of beneficiaries and may thus benefit from the distribution of trust assets as remainder beneficiaries, or are disqualified outside of such trust by fraud or otherwise." Judge Keyes found that the remainder beneficiaries of the trust were both the biological child and the adopted children of the settlor John Eder and the Trustees were thus ordered " to distribute the trust, having been terminated on October 21, 2011, in equal shares to David Eric Eder, Sacha Armand Richter, and Mischa Benjamin Richter.
This appeal was then filed in Superior Court. The court will discuss these issues in more detail but will now briefly outline the positions of the parties to this appeal. The appellant, David Eder argues that in 2009 the settlor John Eder became very angry with his son David Eder. To satisfy this anger he adopted Sacha and Mischa Richter for the sole purpose of reducing the distribution David Eder was to receive under the trust distribution. It is argued that these adoptions were sham adoptions " that does great violence to the intent and purpose of our trust laws and should not be permitted" (post-trial brief). It is also suggested that the trust was the " idea of John Eder's father, Arthur Eder." Arthur Eder wanted the trust distribution upon termination to go to David Eder, his grandson. It is claimed John Eder did not even read the 1991 Annuity Trust before signing it. It is also maintained that a fair reading of the trust document in its entirety suggests that the word child of John Eder only refers to his biological child David Eder and was not meant to include adopted children as beneficiaries of the trust.
The defendants to this appeal point to the fact that per the Joint Trial Management Report David Eder does not contest that Sacha's and Mischa's adoptions were sanctioned by Massachusetts court of state and are considered legal and binding in Massachusetts. These decrees are entitled to full faith and credit in our state. Maltas v. Maltas, 298 Conn. 354, 356, 2 A.3d 902 (2010). A federal imprimatur, however, is not a prerequisite for the defendant's position. The prefatory language to § 45a-731 states that " A final decree of adoption whether issued by a court of this state or a court of any other jurisdiction shall have the following effect in this state." Subsection (4) goes on to provide:
The adopted person shall . . . be treated as if such adopted person were the biological child of the adoptive parent for purposes of the applicability of all documents and instruments, whether executed before or after the adoption decree is issued, which do not expressly exclude an adopted person in their operation or effect. The words 'child, ' 'children, 'issue, ' 'descendants, ' 'heir, ' 'heirs, ' 'lawful heirs, ' 'grandchild' and 'grandchildren, ' when used in any will or trust instrument shall include legally adopted persons, unless such document clearly indicates a contrary intention.Section 45a-734(b), our " Adoption of Adults" statute provides " Upon the court's approval of the adoption agreement, the adopted person shall become the legal child of the adoptive parent and the adoptive parent shall become the legal parent of the adopted person and the provisions of Section 45a-731, as amended by this act, shall apply."
The court will now try to address the legal issues raised in this case.
II
This case raises in the first instance the issue of the proper interpretation of the trust agreement. In Sections 28 and 29 of 76 Am.Jur.2d pp. 61-62 " Trusts, " the general law on this subject is set forth with citations to cases from more than twenty jurisdictions. In Section 28 it states: " In general, the rules for construction of written instruments apply to the interpretation of trusts, so that the meaning of a trust instrument is determined by the same rules that govern the interpretations of contracts, deeds, or wills."
As said in State v. Phillip Morris U.S.A., Inc., 363 N.C. 623, 685 S.E.2d 85, 90 (2009) " interpreting the terms of an express trust " is a case of contract interpretation, " Waters v. Peaks Philips, 685 S.E.2d 85, 90 (2009). Section 29 focuses on how trusts in particular must be interpreted and the rules of interpretation a court should follow in ascertaining the meaning of the language used in them. Section 29 states that " the primary rule of construction for trusts is that a court must, if possible, ascertain the intention of the testator or creator, and a court's primary duty in construing a trust is to give effect to the trustor's intent. A fundamental rule when construing a trust is that the intention of the settlor as expressed in a trust instrument shall prevail unless inconsistent with some positive rule of law. It is said that the cardinal rule of law in a trust case is that the intent of the settlor controls the interpretation of the instrument, and when the purpose of the trust is ascertained, that purpose will take precedence over all other canons of construction."
Comment (a) to Section 4 of the Restatement (3d) Trusts says that: " The intention of the settlor that determines the terms of the trust is the intention at the time of the creation of the trust and not a subsequent intention."
Judge Peck in the 2011 case of Heath v. Heath, CV 09-04044709, Hartford J.D. quotes from Connecticut cases which adopt the foregoing statements of the law in this area.
Judge Peck quotes from Connecticut Bank & Trust v. Lyman, 148 Conn. 273, 278-79, 170 A.2d 130 (1961):
[W]e cannot rewrite a will or a trust instrument. The expressed intent must control, although this is to be determined from reading the instrument as a whole in the light of the circumstances surrounding the testator or settlor when the instrument was executed, including the condition of his estate, his relations to his family and beneficiaries, and their situation and condition. The construing court will put itself, as far as possible, in the position of the . . . [settlor], in the effort to construe . . . [any] uncertain language used by him in such a way as shall, conformably to the language, give force and effect to his intention . . . But [t]he quest is to determine the meaning of what the . . . [settlor] said and not to speculate what he meant to say.
In Heffernan v. Freedman, Executor, 177 Conn. 476, 481, 418 A.2d 895 (1979), the court said: " The issue of intent as it relates to the interpretation of a trust instrument, however, is to be determined by examination of the language of the trust instrument itself not by extrinsic evidence of actual intent, " quoted in Palozie v. Palozie, 283 Conn. 538, 546, 927 A.2d 903 (2007), also see Spencer v. Spencer, 71 Conn.App. 475, 482, 802 A.2d 215 (2002), Cooley v. Cooley, 32 Conn.App. 152, 159, 628 A.2d 608 (1993).
The court will now briefly discuss in more detail the various rules of interpretation applied to the task of ascertaining the meaning of a trust document. They are directly related to rules of interpretation developed in contract cases.
Thus addressing the issue of ambiguity, Judge Peck cited a contract case reflecting the interpretive approach in Section 28 of the previously referred to Am.Jur.2d article. In WE Murdock, LLC v. Cosmos :
The intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . . A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Similarly, any ambiguity in a contract must emanate from the language used . . . rather than from one party's subjective perception of the terms. (Internal quotation marks omitted.) WE 470 Murdock, LLC v. Cosmos Real Estate, LLC, 109 Conn.App. 605, 609, 952 A.2d 106, cert. denied, 289 Conn. 938, 958 A.2d 1248 (2008).
As said in Eckels v. Davis, 111 S.W.3d 687, 694 (Tex. App., 2003) discussing the rules of construction applied to wills and trusts: " If the language of a trust is unambiguous and expresses the intent of the settlor, it is unnecessary to construe the instrument because it speaks for itself."
Related to this interpretative principle in the construction of contracts or trusts is, as noted by Judge Peck, the comment set forth in 76 Am.Jur.2d " Trusts" at Section 34, page 68. " When construing a trust a court must consider the trust instrument as a whole, considering all parts in light of the entire instrument. All provisions of a trust instrument must be construed together, with every word given effect, if possible. A trust document must not be examined piecemeal, and the intention of the settlor must be determined without taking individual clauses out of context and considering them without reference to the whole instrument, " citing Tremaine v. Tremaine, 235 Conn. 45, 57, 663 A.2d 387 (1996), cf. Thinn v. Parks, 79 Ark.App. 20, 83 S.W.3d 430, 432 (Ark, 2002) where the court said: " The rule we follow with regard to construction of a trust is that the intent of the testator (settlor in a trust) governs, and that the intent is to be determined within the four corners of the instrument, considering the language used, and giving meaning to all provisions, whenever possible. As said in Hillman v. Hillman, 433 Mass. 590, 744 N.E.2d 1078, 1080 (Mass., 2001): " When interpreting trust language, however, we do not read words in isolation and out of context."
A necessary result of the foregoing rules of interpretation in construing contracts and trusts is that . . . " a court should construe the trust instrument to give effect to all provisions in it, so that no provision is rendered meaningless . . ." 76 Am.Jur.2d " Trusts, " § 34, page 68 citing Eckels v. Davis, supra, at 111 S.W.3d page 694.
Somewhat more decisively Williston On Contracts emphasizes this general principle of contract interpretation: " An interpretation (of a contract) which gives effect to all provisions of a contract is preferable to one which renders part of the writing superfluous, useless, or inexplicable, " Vol. 11, § 32.5, page 704, citing 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 685 A.2d 305 (1996) along with cases from numerous other jurisdictions.
Finally one other interpretive observation should be noted. In Wells Fargo Bank v. Huse, 57 Cal.App.3d, 927, 932-33, 129 Cal.Rptr. 522 (1976) the court made the following observation:
While as a general rule the intention of the testator must be determined from the language used in the will, it is well recognized that as an aid of interpretation the courts may consider and examine the circumstances surrounding the execution of the document in order to ascertain what the parties meant by the words used (Prob. Code, § 105; Estate of Russell, supra, at pp. 208-09; see also: Estate of Fries (1963) 221 Cal.App.2d 725 ; Estate of Sullivan (1948) 86 Cal.App.2d 890 . Significantly enough, the cases emphasize that among the circumstances to be considered are relevant statutes, case law and public policy in effect at the time of the execution of the document which, in the absence of a contrary intent, are deemed to become a part of the testamentary scheme ( Estate of Heard (1957) 49 Cal.2d 514, 521-22 ; Estate of Stanford (1957) 49 Cal.2d 120, 138 ), see also Solomon v. Central Trust Co., 63 Ohio St.3d 35, 584 N.E.2d 1185, 1189 (Ohio, 1992), Continental Illinois National Bank & Trust Company, 392 F.Supp. 313, 319 (N.D.Ill., 1975).
III
(a)
The court will try to apply these general principles insofar as they address issues of interpretation of the trust raised by the parties.
The first position advanced by the appellant in this regard is defined by the statement in the post-trial brief to the effect that " neither Sacha or Mischa Richter is a 'child' of John Eder within the meaning of that term contained in the 1991 Trust."
The appellant acknowledges, of course, Section 45a-731 of the general statutes whose relevant language in subsection (4) will be quoted again by the court. Therein it says: " The adopted person shall, except as hereinafter provided, be treated as if such adopted person were the biological child of the adopting parent for the purposes of the applicability of all documents and instruments whether executed before or after the adoption decree is issued, which do not expressly exclude an adopted person in their operation or effect. The (word) child . . . when used in any will or trust instrument shall include legally adopted persons unless such document clearly indicates a contrary intention."
The appellant then makes the following argument:
While the 1991 Annuity Trust does not define the term " child" to include adopted persons, the Trust does specifically define " lineal descendants" to include a " child whether so related by blood or legal adoption." (Article XIII, Section 1). Where a settlor or drafter includes particular language in one section of a trust but omits it in another section of the same trust, it is generally presumed that the settlor or drafter acts intentionally and purposely in the inclusion or exclusion. See Webster Bank v. Oakley, 265 Conn. 539, 563, 830 A.2d 139 (2003) (applying these same principles to the interpretation of a statute). Thus, this Court should presume that the settlor/drafter's exclusion of " adopted children" language in references to the term " child" evidences a clear intent not to include an adopted person in the definition of " child, " but solely to include such an adopted person in the definition of " lineal descendants."
The court, at least, cannot accept the appellant's argument. In the court's opinion in light of its obligation to interpret the trust document as a whole and harmonize the various provisions of such a document with each other, the appellant's position would make the trust inexplicable--why on earth would the document preclude adopted children being included in the word " child" in Article I paragraph 6, only to have an adopted child treated as a lineal descendant sometime after the creation of the trust in 1991. There was very good reason, in fact to include adopted children in the concept of lineal descendants without an intention of countering the policy objectives of § 45a-731(4) of our statutes. The term lineal descendants standing alone might very well suggest that adopted children per se could not fall under the purposes and policy objectives of the statute.
In other words the problem is raised by the use of the word " descendant" and exacerbated by the conflation of the word " lineal" with the " descendant." For example Black's Law Dictionary defines " lineal descendant" to be " A blood relative in the direct line of descent. Children, grandchildren, and great grandchildren are lineal descendants--also termed direct descendants." In Connecticut Bank and Trust Co. v. Hills, 157 Conn. 375, 254 A.2d 453 (1969), the court interpreted the language of a 1949 trust (§ 45a-731 was enacted in 1958). The court said: " The words 'descendant' or 'issue' in their ordinary and primary meaning connote lineal relationship by blood and they will be so construed unless it clearly appears they were used in a more extended sense, " also see Bridgeport-City Trust Co. v. Buchtenkirk, 143 Conn. 531, 535, 124 A.2d 231 (1956).
Given this common-law background the use of the word adopted as a modifier of " lineal descendant" in the Definition section of the Trust Agreement (Section XIII, page 19), far from requiring as a matter of interpretation of " child" in the document as not including adoptees underlines the document's acceptance of the liberal interpretive consequences sought to be achieved by § 45a-731(4) and represents an attempt to ensure that the statute's intent applies to this document which would include the ambit of the word " child" as used therein.
At the very least the foregoing observations preclude a finding, in the court's opinion, that the trust document expressly excludes an adopted " child" from the operation of the purposes of § 45a-731(4) or the Definition section's lineal descendant language " expressly indicates a contrary intention" to the statute.
Or to frame the problem in another way let us read the trust as it would have been read at common law. At common law it was held: " . . . that the word 'children, ' in its primary meaning, connotes blood relationship and, except when the testator or settlor is the adopting parent, will not be construed as embracing an adopted child unless a clear intent appears that the word be given a more extended meaning' Parker v. Mullen, 158 Conn. 1, 5, 255 A.2d 851 (1969), citing Connecticut Bank & Trust Co. v. Hills, 157 Conn. 375, 378, 382, 254 A.2d 453 (1969) (emphasis by this court), see also Connecticut Bank & Trust Co v. Bovey, 162 Conn. 201, 206-07, 292 A.2d 899 (1972). As said in Ohio Citizens Bank v. Mills, 45 Ohio St.3d 153, 543 N.E.2d 1206, 1208 (Ohio, 1989).
Within the common law dealing with inheritance by adopted children, courts generally have treated an adoption by the settlor or grantor differently than adoptions by others. In the former situation, courts have readily concluded that the testator is presumed to have intended to include his child or children by adoption as well as his natural children. Albright, supra, at 680, 157 N.E. at 764. In the latter situation, the courts have been less likely to hold that an adopted child is to be included within a class in a testamentary gift or inter vivos trust. See, generally, Annotation, Adopted child as within class in testamentary gift (1962), 86 A.L.R.2d; Annotation, Adopted child as within class named in deed or inter vivos trust instrument (1962), 86 A.L.R.2d 115.
In other words under a common-law analysis the use of the word " child" in Article I, section (6) setting forth the distribution of the trust upon its termination to provide for " equal shares" to each child of the grantor then living " would not preclude adopted children being considered a child for distribution purposes. The net result of the plaintiff's argument is that despite explicit language indicating a contrary intent and despite the ameliorative and clearly stated policy objectives of § 45a-731 the court would be required to ignore these factors and implement a result that would not even have passed muster at common law.
Finally the court will return to a more specific analysis of the particular interpretive principle the plaintiff relies upon. As noted previously the plaintiff argues that " where a settlor or drafter includes particular language in one section of a trust but omits it in another section of the same trust, it is generally presumed that the settlor or drafter acts intentionally and purposely in the inclusion or exclusion" --thus " child" is not defined to include adopted individuals in the trust but the Trust specifically defines " lineal descendants" to include a " child whether so related by blood or legal adoption, " (Article XIII, Section 1). The brief then says " See Webster Bank v. Oakley, 265 Conn. 539, 563, 830 A.2d 139 (2003) (applying these same principles to the interpretation of a statute)." Webster itself relies on two cases, Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) and Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 396, 618 A.2d 1340 (1993).
Webster involved a situation where the defendant claimed to suffer from disabilities rendering her unable to work. She argued that the Fair Housing Amendments Act of 1988 required a lender in a foreclosure situation to make reasonable accommodations for a borrower's disabilities prior to instituting a foreclosure action. The Supreme Court held that the trial court correctly determined that 42 U.S.C. § 3604 of the act which bars discrimination in housing sales and rentals does not apply to the enforcement of mortgage loan agreements under § 3605 of the FHAA and therefore the trial court properly refused to conduct a hearing on whether she was provided with reasonable accommodations. Discrimination in residential real estate related transactions which includes mortgage loan servicing and enforcement is addressed solely under § 3605. The court held the plaintiff in Webster could only rely on § 3605 and because of that could not make a claim that reasonable accommodations were not provided per § 3604. The Webster court, quoting Russello said " where Congress includes particular language in one section of a statute but omits it in another section of the same act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or inclusion." Webster quotes Vaillan Court to the effect that: " We are not permitted to supply statutory language that the legislature may have chosen to omit."
This court, at least, is not of the opinion that the Webster analysis is applicable to the problem of interpretation before it. The language of a Trust is being interpreted not a statute and the Trust language must be interpreted in light of the statutory context (see § 45a-731) within which it is written and given that context the Trust must be interpreted as a whole so that each part thereof is harmonized with the whole trust agreement. Here the legislature has passed ameliorative legislation and has said that an adopted child, in effect, can be the beneficiary of a trust unless his or her participation in the trust as a beneficiary is expressly excluded in the trust agreement and the trust agreement indicates a contrary intention. That is the legislative mandate. For the reasons stated the court cannot conclude that the " lineal descendant" language in Article XIII of the Trust can be transposed to define the meaning of child in such a way as to exclude adopted children from the meaning of " child" as used in the Trust document.
(b)
In his post-trial brief the appellant David Eder points to portions of the transcript in which it is indicated that John Eder did not read the Trust document before signing it. It was drafted by his father, Arthur Eder's lawyer. Arthur Eder supplied the assets for the Trust when it was created in 1991. The deposition testimony of John Eder was referred to at the hearing on this matter where it was claimed that John Eder did not even read the transcript before signing it. The brief refers to page 77 of the July 27, 2015 transcript for the proposition that Arthur Eder wanted all the money in it to go to David Eder, his grandson and John Eder's son. No specific language supports this claim, however. In any event all of this is irrelevant. John Eder did say he " looked through" the Trust document before signing it but in fact he did sign it. And in any event failure to read a contract does not warrant modification or nullification of its provisions, Friezo v. Friezo, 281 Conn. 166, 199, 914 A.2d 533 (2007) see also Batter Building Materials Co. v. Kirschner, 142 Conn. 1, 7, 110 A.2d 464 (1954); C& R Tire Distributors v. Allstate Ins. Co., 177 Conn. 58, 61-62, 411 A.2d 31 (1979), see " Contracts, " 17A Am.Jur.2d, § 209, § 210 wherein § 210 it says the general law is: " People are free to sign legal documents without reading him, but the documents are binding whether read or not" page 215.
In any event the trust is irrevocable and there was no claim John Eder was induced to sign it by fraud or mistake which could be a reason to invalidate it just as it would invalidate a contract, see just quoted authorities. There is no claim the Trust is not binding; in fact the appellant argues in another context that the Trust language precludes interpreting " child" in its provisions as allowing an adopted child to be a beneficiary.
In any event where is the ambiguity in the Trust language allowing extrinsic evidence of the settlor's intent (i.e. John Eder) not Arthur Eder's intent, who is not the settlor. The David Eder alone position is not sustainable by the very language of the trust which is claimed to be Arthur Eder's creation--see previous discussion and references to Trust language which indicate the beneficiaries of the Trust, 20 years after its creation, would be the " children" of John Eder (in the plural). Also if Arthur Eder was the real creator of this document and his intent controlled, especially as to ensuring the appropriate bloodline, why were adopted children allowed to sneak into the definition of linear descendants (see previous discussion).
IV
The difficult part of this case, at least from the court's perspective, must now be addressed. Under § 45a-731(4) adopted children, unless expressly excluded shall be treated as the biological children of the adopting parent in all documents and instruments. Section 45a-734 allows for the adoption of adults by the adopting parents. The court has concluded that this Trust document does not exclude adopted children from the definition of " child" --such " child" being a beneficiary of the Trust formed in 1991 when it was to be terminated in 2011. As a corollary to these conclusions the court finds that although the Trust document explicitly says David Eder is the only living child of the settlor, John Eder, it contemplates other " children" could be beneficiaries of the Trust when it terminated, if John Eder had other children at that time--that is between the 1991 date of Trust formation to the date of Trust termination in 2011. It is also true that no serious objection has been raised to the validity of the adoption of Sacha and Mischa Richter in the Massachusetts's court on June 30, 2010.
But the claim is made by David Eder that the adoptions were a sham and subterfuge to avoid the intent and purposes of the Trust. The court therefore should not permit this sham and must overrule the Probate court's decision holding Sascha and Mischa Richter are children of the settlor, John Eder, and should thus be beneficiaries of the Trust along with David Eder the settlor's biological child.
It might be asked how can a subterfuge or sham argument be raised to defeat these defendants' right to be considered as beneficiaries of the trust in the context of a situation where 1) our statutory scheme gives the rights mentioned in the trust context to adoptees and further recognizes adult adoptions and (2) at least from the court's perspective, the trust language itself cannot be read in such a way as to preclude interpretation of the word " child" therein as precluding a finding that adopted children could not be beneficiaries of the trust from a purely linguistic perspective? Two cases give succinct answers to this observation. In Minary v. Citizens Fidelity Bank & Trust, 419 S.W.2d. 340, 343 (Ky., 1967) the court said:
The time has come to face again this problem which has persistently perplexed the court when an adult is adopted for the sole purpose of making him or her an heir and claimant to the estate of an ancestor under the terms of a testamentary instrument known and in existence at the time of the adoption. Even though the statute permits such adoption and even though it expressly provides that it shall be with the same legal effect as the adoption of a child we, nevertheless, are constrained to view this practice to be an act of subterfuge which in effect thwarts the intent of the ancestor whose property is being distributed and cheats the rightful heirs.
In Davis, Trustee of the Marie J. Giffey Trust v. Jennifer Nielson and Brian Nielson et al., 871 S.W.2d 35, 38 (Mo.Ct.App., 1994) the court said that: " Although Missouri adoption statutes recognize adult adoptions, statutes do not directly govern an adopted child's right to inherit from a will. The testator's intent governs. Whether an adopted child takes under a device varies from case to case according to the testator's intent as determined by construction of the whole will in light of surrounding circumstances."
The foregoing comments should not be affected by the mere fact that, as in this case, the settlor, John Eder has adopted parties who now claim to be beneficiaries under the 1991 Trust. This is so because of the language of the Trust itself which guides the Court's task. Article XII states in its first sentence: " This Trust is irrevocable and the grantor shall have no right whatsoever to alter, amend, revoke or terminate the trust, created hereunder, in whole or in part." Perhaps more to the point a California court said: " An irrevocable trust is just what it sounds like--the trustor (or settlor) can't take the property back. Thus if the settlor establishes an irrevocable trust, the beneficiary acquires a 'vested and beneficial interest in the trust property' which cannot be divested. (See Empire Properties v. County of Los Angeles, 44 Cal.App.4th 781, 787, 52 Cal.Rptr.2d 69 (1996) . . ." Kari Grinder v. Mahaffey, GO 45013, Cal. Court of Appeal, Fourth District (2012), only Westlaw citation is currently available--2012 WL 5420212.
Thus the settlor himself cannot change the operation of the trust by a sham adoptions done solely for the purpose of creating beneficiaries which has the effect of reducing the benefits that would have otherwise accrued to a beneficiary absent the adoption.
What are the considerations to be taken into account for deciding whether an adoption was a subterfuge to avoid the intended distributions upon the termination of the Trust? The Court could find no Connecticut cases dealing with this issue and the lawyers, despite their experience and thoroughness, could find no Connecticut cases directly dealing with this issue. On this issue a total of twenty-one cases are referred to by counsel.
The court will first examine cases cited by the plaintiff where courts have found an adoption was a subterfuge which would not be permitted to allow an adult adoptee to be considered the beneficiary of a trust. What are the characteristic markers for courts finding adult adoption were perpetrated so as to operate as a sham or subterfuge allowing distribution of trust assets to an adoptee thus defeating the purpose the settlor had when the trust was originally set up?
In Rickard v. McKesson, 774 So.2d 838 (Dist.Ct.App. of Fla., 2000) Daniel Blackwell who was eighty-eight and childless adopted his seventy-two-year-old partner, McKesson. Blackwell was a beneficiary of the trust and when Blackwell died McKesson asserted his right to inherit under the Trust. Sylvia Rickard moved to have the adoption voided as a fraud on the court arguing if Blackwell had died childless the trust remainder would have gone to her--thus she argued the adoption was a subterfuge to deprive her of her inheritance, id., page 839. The court agreed saying: " A similar situation was presented in Minary v. Citizens Fidelity Bank & Trust Co., 419 S.W.2d 340 (Ky., 1967), in which a trust left the remainder to the surviving heirs according to the state laws of descent and distribution, and if there were no such heirs, then to a church. In an attempt to avoid the trust funds from being distributed to the church, the only living child of the creator of the trust adopted his own wife, so that she would be his heir. The court refused to recognize the adoption, and the property passed as the testator intended, " id., p. 841.
The Minary court itself referred to a Kentucky statute allowing for adult adoptions and said: " Even though the statute permits such adoption and even though it expressly provides that it shall be 'with the same legal effect as the adoption of a child, ' we nevertheless are constrained to view this practice to be an act of subterfuge which in effect thwarts the intent of the ancestor whose property is being distributed and cheats the rightful heirs." This language appears to blanketly bar adult adoptees from being beneficiaries in trust disputes. But later language in the opinion does not support this view. The court said " When one rule of law does violence to another it becomes inevitable that one must then give way to the other. It is of paramount importance that a man be permitted to pass on his property at death who represent the natural objects of his bounty . This is an ancient and precious right running from the dawn of civilization in an unbroken line down to the present day. Our adoption statutes are humanitarian in nature and of great importance to the welfare of the public. However, these statutes should not be given a construction that does violence to the above rule . . . Adoption of an adult for the purpose of bringing that person under the provisions of a preexisting testamentary instrument when he clearly was not intended to be so covered should not be permitted and we do not view this as doing any violence to the intent and purpose of our adoption laws. 419 S.W.2d pp. 343-44. (Emphasis by this court.) It seems to go without saying that the purpose of the adoption laws would not be thwarted by barring a wife who has been adopted by her husband from taking under a trust thus depriving a clearly indicated alternate beneficiary from receiving trust proceeds. But it certainly would not thwart the settlor's intentions if an adoptee who was a natural object of the adoptor's affections in a parental relationship over the years could be considered a trust beneficiary despite the fact that the adoption took place after the parental type relationship commenced and when the adoptee was an adult.
Another case cited by the plaintiff, Belgard v. Johnson, 829 P.2d 457 (1991, Colo.Ct.App.) reaches the same result as Minary in a case where a husband adopted his wife but the court noted at the time the trust instrument was executed Colorado did not recognize adult adoptions and the trust did not indicate the settlor had a clear intent to include an adult adoptee as a child id., page 459.
In Dixon v. Weitekamp-Diller, 2012 IL App (4th) 120209, 979 N.E.2d 98, 365 Ill.Dec. 732 (Ill.App., 2012) an 87-year-old, Hughes, who had previously been unmarried in 2004 married his 71-year-old " former assistant, " Barbara. He was the beneficiary of three trusts that provided for the res of each trust to be distributed to Hughes' children at his death, if Hughes were to die without children the res of each trust would go to his sister's children. Hughes' grandparents had set up the trust. In the fall of 2010 the 94-year-old Hughes adopted three of Barbara's daughters. The court came to the obvious conclusion by saying: " To permit Hughes to circumvent the desires of his paternal grandfather and maternal grandmother by 'adopting' three grown women--at least one of whom was a grandmother--at the age of 94 would thwart the intent of those trustors, " id., page 104. Hughes died within two months of the adoptions. The court reasoned that given these specific circumstances the " adoptees" could not be considered " children" who were to be beneficiaries under the trust upon the death of Hughes.
Interestingly Dixon cites an earlier Illinois case, Cross v. Cross, 177 Ill.App.3d 588, 532 N.E.2d 486, 126 Ill.Dec. 801 (1988). Mary Cross died in April 1984 leaving her estate in trust and granting her son David a testamentary power of appointment to distribute the estate to a " descendant." In May David adopted Gilbert Cross as his son and executed a will exercising his power of appointment in favor of Gilbert Cross claiming the latter was the grandson and descendant of Mary. Gilbert Cross had lived with David Cross 17 years and David had not adopted him during that time; he only did so one month after Mary Cross died. At the time of the adoption David Cross was 49 and Gilbert Cross was 36. David Cross died in May 1985. Nephews of Mary then brought a declaratory action asking that Gilbert could not be considered a beneficiary of the trust; they would then be beneficiaries of the trust. The court agreed with the nephews holding the adoption was, in effect, a sham adoption gone through solely to defeat the testator's wishes. At one point in the decision its result was dictated by the very language of the testamentary instrument which evinced Mary wanted the estate to remain in the family. She used the used " descendant" and " if she had intended David Cross could appoint anyone he chose the words 'my descendants' would be mere surplusage." The court held the language of the trust " clearly never contemplated" that someone David selected for adoption would be a beneficiary. Citing Illinois statutes wherein a presumption runs in favor of adoptees that they would " inherit property from the lineal or collateral kindred of adopting parents, " the court noted the statutory language only applies " where a contrary intention is not shown. Here we have found that the trust plainly shows a contrary intention." Moreover, the court said the " statute concerns inheritance rights and not powers of appointment under a trust, " id., page 489.
Not a problem under the present trust, as previously discussed since Article XIII states lineal descendants shall include children or grandchildren whether or not adopted.
As previously discussed this court cannot make " a contrary intention" finding here based on the language of the trust.
The defendants cite several cases which support the position taken by the Probate Court in this case permitting Sacha and Mischa Richter to be recognized as beneficiaries of the 1991 Trust. The case of In Re Trusts Created by Harrington, 311 Minn. 403, 250 N.W.2d 163 (Minn., 1977) the trial court was asked to construct of trusts set up by Charles Harrington under his will. The trial court interpreted the trusts to exclude the adopted children and issue of said children as beneficiaries. They appealed and the Minnesota Supreme Court reversed the trial court. The trustor, Charles Harrington, had a natural daughter, Laura Belle Hudson. It is interesting to note that the court in its introductory remarks felt it necessary to make the following remarks:
In September 1926 Katherine Dodge Andrews, who is one of the appellants here, and her brother, Edwin Dodge, whose heirs are among the appellants here, came to live with Laura Belle Hudson and her husband. Their natural mother had recently died and their natural father was crippled as a result of a stroke and was living in a nursing home. Katherine was 17 at the time, and Edwin was 18. Both children continued to live with the Hudsons, except for periods of absence while attending college, until their respective marriages.
Both children had occasion to meet and become acquainted with trustor during the time they lived in the Hudson household. The only evidence of the relationship between the two children and trustor was that it was a warm and friendly one. Trustor had made small gifts to Katherine on birthdays and other occasions and sent her fruit while she was away at college. Trustor, however, made no specific provisions for the children in his will or any other trust, and the will and trusts, at least in so far as relevant here, remained unchanged until his death.
Trustor died on March 27, 1928. Thereafter, on February 6, 1933, Katherine and Edwin Dodge were formally adopted by the Hudsons. Both Katherine and Edwin were adults in their middle twenties at the time of the adoption.
In reversing the trial court's decision the court examined the language of the trust and in so doing found that language does " not evince an intent to include only natural born children of Laura Belle Hudson." In doing so the court said it was guided by certain propositions regarding the rights of adopted children albeit those children were adults at the time of adoption. The court in reaching its final conclusion made the following observations earlier in the opinion:
In this state adopted children stand in the same position as biological children in all respects, including their right to inherit by laws of intestacy or under appropriate testamentary provisions. By such legal policy, the terms 'children' and issue' are presumed to include both biological and adopted offspring. Likewise, in the modern view, the term 'descendants' prima facie includes adopted as well as biological offspring.
This is not the general, or perhaps even the majority, view. However, it is based upon humane and compassionate considerations which are appropriate to the attitudes of a modern civilized society, and which are expressed in our statutes on this subject. We have come to realize that it is not the biological act of begetting offspring--which is done even by animals without any family ties--but the emotional and spiritual experience of living together that creates a family. The family relationship is created far more by love, understanding, and mutual recognition of reciprocal duties and bonds, than by physical genesis. The marriage ceremony gives recognition to this fact as between spouses. Formal adoption recognizes this fact as between parents and children.
The court also noted that the appellants argued that (Minnesota's Supreme Court) has taken a position in favor of including adopted children in trust and will provisions based on the strong policy in favor of such children embodied in Minn. St. 259.29 which has existed virtually unchanged since 1905."
The defendants also cite the case of In Re Estate of Fortney, 5 Kan.App. 2d 14, 611 P.2d 599 (Ct.App. Kan., 1980). In that case the issue involved the interpretation of a will by Asa and Adaline Fortney. John Fortney was their son and the will was executed in 1922. Lloyd Amspacker was the nephew of John Fortney's wife and was adopted by the latter when he was 90 and Lloyd Amspacker was 65. The appellants were the descendants of the brothers and sister of Asa and Adaline Fortney. John Fortney died two years after the adoption and Amspacker claimed the status of an heir under the Asa and Adaline Fortney will which the descendants, just referred to, contested. The court sided with Amspacker although in 1922 adoption of adults was not recognized in the state. It upheld the trial court by stating Amspacker was an heir by adoption of John Fortney. The Court of Appeals cited Kansas statute giving a " child" the same rights of property as a natural child and held an adult child falls within the definition of child. The court's opinion upholding Amspacker's claim to the status of heir by adoption is based on statutory construction. The court did not address the concept of sham adoptions or subterfuge since it was apparently not raised. Even at that the court noted in this contentious area that: " There is considerable conflict among other jurisdictions with respect to those who are to take under or through an instrument whether a statute that has been enacted after an estate has vested subject to divestment can affect the intention of the person who executes the instrument. In our state the statutes recognizing the rights of adopted children and granting those rights to adopted children (§ 45a-731, § 45a-734) were operative decades before the 1991 Trust was set up).
The defendant cites two cases which make an interesting point with regards to the sham or subterfuge analysis although neither one involves interpretation of a trust agreement. These cases underline what to the court seems obvious--any adoption where there is no claim of sham or subterfuge by the very nature of its operation will affect the rights, for example, of a biological child under a will or trust. That being the case the fact that the rights of the biological child are affected by recognizing the rights under a Trust agreement language of an adoptee should not standing alone contribute to a sham or subterfuge argument--any other holding would make our statutes liberal policy regarding the rights of adoptees meaningless.
Thus, In Re Adoption of Swanson, 623 A.2d 1095 (Del., 1993) involved an appeal of the denial of a petition by Richard Sorrels to adopt James Swanson a consenting adult who was a companion of Sorrels for 17 years. Sorrels was 66 and Swanson 51 years old. The adoption was to formalize a close emotional relationship and to facilitate their estate planning. The Delaware Supreme Court reversed the trial court's denial of the petition saying: " Many jurisdictions limit inquiry into the motives or purposes of an adult adoption. However, most recognize that adult adoptions for the purpose of creating inheritance rights are valid." In 333 East 53rd Street Associates v. Mann, 121 A.D.2d 289, 503 N.Y.S.2d 752 (App.Div.N.Y.Sup.Ct., 1986) the court quoted from 21 ALR.3d 1012, 1029-30 § 8, " Adoption of an Adult": " Most of the cases which permit the adoption of an adult have recognized at least by implication, that the fact that an adult is adopted for the purpose of making him (sic) eligible to inherit property or to share in the distribution of a trust does not affect the validity of the adoption, " see also Matter of Brundage, 134 N.Y.S.2d 703 which explicitly applied this principle.
But all of this does not suggest a sham or subterfuge argument cannot be made in a case such as the one before the court despite the fact that (1) § 45a-731 and § 45a-734 make explicit the rights of adoptees and (2) the court does not interpret the 1991 Trust document as indicating an intention contrary to the statutory policy. For example, In Re Swanson, supra, felt the need to make the point that the adult adoption took place in the context of a 17-year relationship of two individuals living together who wanted to conform their emotional ties, also see previous quote in In Re Trust Created By Harrington, supra, where court digressed on seemingly close relationship of adoptee and daughter of settlor and her relationship to settlor.
For the court at least the most instructive case in this area is Davis v. Neilson, 871 S.W.2d 35 (Mo.Ct.App., 1994) which has a fact pattern similar to this case. The court noted Missouri along with 40 other states permit adult adoption. Missouri places no limit on the age of the adopted child. The court defined the matter before it as follows: " At issue in this case is whether six adults adopted by Robert Davis Nielson as his children--his secretary and her son, his nephew, and three friends--should be included with Nielson's two natural children in a class of beneficiaries who would receive a trust estate. The trust provided that Nielson was to benefit from the estate until he reached age 40 when the residuary was to be distributed to Nielson's issue. The trustee has refused to distribute the residuary to Nielson's adopted children on the theory that the adoptions were shams." Marie Giffey executed a will in 1968 setting up the trust. One-third of her estate was to go to her son and two-thirds to Nielson. Giffey directed that Nielson was to receive from the trust until it was terminated--when her son Hunter Davis died or when died or when Nielson reached 40 whichever occurred last. Upon termination the trust income was to be distributed " to the issue per stirpes, of my . . . grandson Robert Davis Nielson. The will defined 'issue' as including an adopted child or children." Just before his fortieth birthday Nielson made the six adoptions. The court noted the adoptees were total strangers to the settlor Giffey, none lived with Nielson in any kind of family relationship and only his secretary received any support from Nielson. The " acquaintances" he adopted lived in Florida, his nephew lived in California, one of the secretary's sons lived in Oklahoma. Four of the adoptees were older than Nielson. Each of the adoptees retained their surname.
The court goes on to note that adult adoptions in trusts and their effect on trust distribution has been rife with controversy and noted there were three lines of cases. The oldest line presumes all adult adoptees are to be included in class gifts to children. The second line presumes they are to be excluded and a third line " takes the middle ground by allowing exceptions to presumptive inclusion or exclusion." The court went on to say " we conclude that Missouri belongs to in the third line" --a line of cases this court, at least, believes Connecticut should join.
The Davis case then made a series of observations which are relevant to the issue presented by this appeal.
As noted, Missouri like Connecticut recognize adult adoptions but liberal adoption statutes " do not directly govern an adopted child's right to inherit from a will" or as in this case a right to be regarded as an appropriate beneficiary of a trust. The Davis court said: " Whether an adopted child takes under a devise varies from case to case according to the testator's (read also settlor's) intent as determined by construction of the whole will (or trust) in light of surrounding circumstances."
Reading the testamentary instrument before it the court concluded that Giffey " intended to include adopted children in the class to receive the residuary of her trust." Here this court also concludes the irrevocable trust intended to include adopted children as residuaries of the trust. The Davis court conducted its interpretative task within the context of Missouri statutes which like Connecticut statutes has recognized adult adoptions for many years.
The Davis court then said the appropriate inquiry in light of the foregoing is to determine whether Giffey's intention could be interpreted under the testamentary document to include within the gift class the particular adults adopted by Nielson.
Here too in light of or, perhaps better put, in spite of the conclusions the court has reached regarding the trust language's inclusion of adopted children and the statutory background regarding the rights of adopted children including adult adoptees, the issue presented is whether the particular adoptees in this case (Sacha and Mischa Richter) can be held to be included, by intention, in the " gift class" under the trust.
The Davis court responded as to how this particular question before it should be decided and that response, to this court at least, is highly instructive. As to the Richter adoptees how is it to be determined whether they should be regarded as beneficiaries of the 1991 Trust upon its termination?
The Davis court came up with a remarkably instructive test despite the morass of legal opinions in cases that can fairly be said to be " all over the lot (to coin a phrase)."
The Davis court said " Common sense answers the question. 'Common sense tells us that a donor would normally expect anyone partaking of his (sic) bounty to be a true family member and not just some willing adult adopted for the purpose of reducing or defeating a gift-over to others . . . Common sense tells us that Giffey, by inserting adopted children in the class described as Nielson's 'issue' intended to include only individuals with some familial bond to her family -individuals to whom Nielson felt a familial bond of love and duty, such as adult step-children."
The Davis court relied on what it said was a " leading case in this area, " Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672 (Mo., 1936). Davis said Brock is consistent with " our conclusion that only individuals with familial ties to the adopting parent should be included in the gift class." It noted that in Brock the trial court " heard evidence that the adult had been adopted because she had lived with the adopting parents at intervals during her childhood and they thought of her as a daughter."
The Davis court said:
Inquiry into the motives behind an adoption should indeed be irrelevant, as the Brock court said, if the court presumes the testator to have included in his or her gift class only individuals who would be a natural object of his or her bounty, an issue not addressed in Brock . Even if a desire to make the adoptee qualify as a beneficiary motivated the adoption, that motive is immaterial so long as the courts presume a testator to include within a gift class only persons who have a familial tie to the testator's family. Restricting the presumption of inclusion to only individuals who are the natural object of the testator's bounty should be sufficiently effective in sifting the bounty hunters from the class.
Or more simply put, a Missouri's Supreme Court's language is referred to as instructive: " One of the most telling circumstances in determining an intended beneficiary, when there is some doubt about it, is the relationship of the testator to the beneficiary." Gannett v. Shepley, 351 Mo. 286, 172 S.W.2d 857, 861 (1943)--the same test commonsensically should be applied when a court attempts to deduce a settlor's intent from the language of a trust instrument such as the 1991 irrevocable Trust in this case. Suffice it to say that if the Davis court test were to be applied to the cases cited by the plaintiff, the result reached by those courts can be taken to preclude a finding that the adoptees in those cases were natural objects of the settlor's affection and involved in a familial relationship with the settlor. This would argue for application of a sham analysis since the adoption in such cases only served to defeat the trust's intention at the time it was set up resulting in the reduction of the share of the trust that would otherwise be received by.
The court will now try to apply these general concepts to resolving the claim before it. That claim by the plaintiff is that the Richter adoptions were a sham and a subterfuge to amend what is the irrevocable 1991 Trust thereby reducing the share David Eder would receive upon the termination of this twenty-year trust. The only permissible way that share could have been reduced after the Trust's creation is if John Eder, the settlor had had another biological child or had adopted a child under circumstances in which the adoption could be viewed as (1) a natural expression of a desire to express recognition of a preexisting familial bond between John Eder and the Richters, who at the time of the adoption were adults in that they could be considered natural objects of his bounty, and (2) a recognition of the desire of Eder and the Richters to continue that bond.
Several arguments have been raised by David Eder to support his position that the Richter adoptions were a subterfuge to improperly amend the 1991 Trust. They are all interrelated; the court will list them then discuss the bearing of each on the appeal before the court. (1) looking at the relations over the years between John Eder and Sasha and Mischa Richter can it be said that there was a familial relationship between these parties which would qualify as that type of relationship which under a fair interpretation of the trust language would meet its purposes of keeping the assets to be distributed upon the trust's termination within a family context (2) did the reason for the adoptions result from a falling out between the father John Eder and David Eder his son. The adoptions would never have taken place but for that factor so it cannot be said John Eder went through with the adoptions out of a genuine desire to recognize a familial relationship with the Richters who were adults at the time of the adoptions (3) related to this last stated contention is the plaintiff's claim that his father John Eder had access to a great deal of money some of which he could have given to Sasha and Mischa Richter without this adoption process which only served to reduce the amount David Eder would receive upon the termination of this 1991 Trust and was only gone through to inflict that result on David Eder (4) all of these positions, it is claimed, are supported by the fact that a strong close relationship has existed between Sasha and Mischa Richter and their father Daniel Richter which continued after the formal Eder-Richter adoption which by itself is evidence of a sham adoption. The court will now try to examine the merits of each of these positions.
The relationship between John Eder and the Richter adoptees cannot be viewed in isolation from the relationship he had with his biological son David Eder. John Eder married Pearl Ellen Bench in the early 1960s, David Eder was born in 1963 and his parents were divorced soon after he was born. John Eder was eighteen years old when he married Ms. Bench. When David Eder was five years old his mother married William Shure. From the time David Eder was five he lived with his mother and Mr. Shure in Connecticut until he left for college. In 1970 after the divorce John Eder moved to Provincetown, Massachusetts where he still lives. David Eder, however, testified he had a " good relationship" with his father John Eder, he would go to the Cape to visit him and he would see his father when he came to visit his parents, David Eder's grandparents. David Eder said that after he got out of college he " became closer, spoke on the telephone more" and had more substantive conversations. He was not a Trustee of the 1991 Trust but his father wanted him to secure information about its operations and he also " managed" the Trust income funds and made investment of funds which exceeded the $114,000 per year paid to his father under the Trust. David Eder also asked David Eder to be a Trustee of a 1971 Trust that John Eder's father had set up so he could " watch over" what the other Trustees were doing but David Eder did not manage that fund at least according to John Eder. David Eder said during the period between 2000 and 2009 when he was " handling" his father's finances David Eder said he spoke to his father frequently and they went to Costa Rica for a month--oddly put however: " We went on a trip, not together, but to the same place and spent time together."
A serious rift developed between David Eder and his father in 2009 which the court will discuss separately as it relates to the issues before it.
In his testimony John Eder testified he had very little involvement with David Eder while he was growing up, periodically he would see him at his parents' house, David Eder's grandparents, but he only went to the Shure home a couple of times over the years. He took him to the Cape on one occasion and when he was in Florida his son came to visit him " for a short period." When John Eder testified about the trip to Costa Rica with David Eder he said: " But even during that time, you know, I sort of went one way sometimes and he went another." After the divorce from his mother David Eder never lived in John Eder's Massachusetts home. John Eder said David Eder lived with the Shures and his half brother. David Eder's half brother, Andrew Shure, was deposed and no reason was offered for questioning the motives for his testimony. Andrew Shure said he was very close to David Eder, he lived in his parents' home and he regarded David Eder as his " full brother." He still enjoys a close relationship with David Eder (the deposition was taken in March 2015). He was asked whether there were times " David would go stay with John" (John Eder). The answer was as follows: " A. No. I mean, no, maybe for a day, like an afternoon visit, but, not--not a weekend, nor weeks, nothing like that." Andrew Shure went on to testify about the relationship his father William Shure had with David Eder. The following then occurred in response to a question regarding the kind of relationship between Mr. Shure and David Eder.
A. They were very close. David grew up in house, he, you know, had a parental role with him, you know, they were like father and son.
Q. Question: Does that relationship continue to today?
A. Yes.
John Eder testified and was cross examined about his relationship over the years with Mischa and Sacha Richter. He began living with their mother Jill Richter around 1975 when Sacha was six and Mischa was four. They lived together for approximately ten years in John Eder's home in Provincetown, Massachusetts. John Eder said he had a family relationship with the children saying he was a " father figure." He then described that relationship which presented the indicia of a parental relationship--" we would do all kinds of things together, whether it had to do with homework, or reading or learning how to ride a bicycle or anything that was age appropriate . . ." He tried to teach them " respect." He did age appropriate recreational activities with Mischa and Sacha--when they were young riding a bicycle together, when they were older building something together. Eder said they " would draw together, we would create objects out of different material" --activities certainly not foreign to what they would become, Sacha an artist, Mischa a photographer. He taught Mischa how to read, he went to school conferences, he took them to school and picked them up from school on a daily basis. Eder also said his son David came to Provincetown several times to play with Mischa and Sacha while they were children. John Eder was asked about how much time he spent with the Richter children when they were young compared to the time he spent with David Eder, his biological son. He testified: " I certainly spent ninety percent or more time with Sacha and Mischa than with my son David." What might be described as the familial aspect of the relationship Eder had with the Richter children while they were young is further evidenced, for example, by the fact that on several occasions John Eder took them to Connecticut to visit with his parents before his living arrangement with Jill Richter ended. John Eder said also that when Jill Richter and her children lived in his home he contributed to their financial support substantially--books, food whatever the children would need.
Jill Richter and the children left Eder's home in 1985 after ten years but his relationship with Sacha and Mischa Eder did not end although he conceded with the common sense observation that there was not the everyday contact that would have existed if the children had lived in his home.
However, Eder testified after the 1985 breakup with Jill Richter he visited Mischa when he lived in England, he visited Mischa six or eight times but it could have been more because whenever he traveled overseas, he would see Mischa going and coming. He also said " sometimes I would go specifically to see him." Eder said at one point he spent four months in Morocco and invited Mischa to travel with him which Mischa did for several weeks. He traveled to England for Mischa's wedding and participated in it and Eder testified he also participated in Sacha's wedding in Provincetown. He would also see Mischa when the latter came to New York on a job; Sacha lived in Provincetown and when he did not see him he talked to him frequently on the phone. These close contacts exists to the present day--Mischa has two children who call John Eder " grandpa."
One indicia of a close ongoing relationship is indicated by John Eder's response of " absolutely" to the question " You have a collection of cards, gifts and things that the boys (Sacha and Mischa) have made for you over the years and presented to you." Cards and letters were introduced into evidence sent by Sacha and Mischa while they were young men long before this legal dispute arose. None were addressed to " Dad" but why would they be since they had a biological father and the items were sent years before the adoption--of which more later. More to the point if there were not a close bond between John Eder and Sacha and Mischa why would Eder have saved all these memorabilia. Certainly it cannot be argued that these items were saved because of some premonition that a legal dispute with the sham and subterfuge allegations concerning a legal adoption would arise years later.
After 1985 when they left his home Eder continued to help the Richters when they went to college. He helped Mischa and Sacha with books, rent, and even parking tickets. He testified that he attempted to gather his financial records from 1985 on but was not able to gather them all since any financial records went back to 1985. A record of checks he wrote to each of the adoptees was introduced into evidence. Between 1991 and 2001 Mischa received $21,200 in two checks; the check for $20,000 was for property Mischa and his wife owned in London. Between 1995 and 2005 Eder wrote 16 checks to Sacha totaling $40,134 for a variety of reasons. For example a check of $20,000 for Sacha made in 1995 was to help Sacha buy a home in Provincetown where Sacha's biological father lived and where John Eder also resided. The plaintiff does note that for a ten-year period from 1991 to 2001 no checks were written for Misha yet thirteen checks were made out to Sacha--does this mean the court should entertain the notion that only the Mischa adoption should be recognized but not that of Sacha because it was a sham? This does not seem supportable since the new post-2001 cycle certainly began with a bang to Mischa (to use the vernacular)--a $20,000 check was given to Mischa. In addition to the check distributions John Eder testified he gave cash contributions to the adoptees. In any event there is no indication that during this 1991 through 2001 period there was a dearth of contact between John Eder and Mischa as opposed to Eder and Sacha.
All of the foregoing was notably before the 2009 falling out with his biological son David Eder and it could hardly be claimed that these disbursements were made in contemplation of supporting some latter claim that the adoptions that did ensue were a sham and subterfuge engineered solely to harm David Eder's right to be the sole beneficiary of the 1991 trust.
All of this also indicates to the court at least, that a familial bond existed between John Eder and the Richter brothers for years preceding the adoptions and at the time of the adoptions; they were certainly natural objects of Eder's natural bounty. As the court said in Davis v. Neilson, supra, the Richter brothers appear to be individuals who had a family bond to John Eder and neither one can be described as " some willing adult adopted for the purpose of redoing or defeating a gift over to others." This is not similar to that case which the court previously noted where a beneficiary adopted his adult wife to defeat a gift over to a charity, Minary v. Citizens Fidelity Bank & Trust Co., supra, nor is it like the situation presented by the Davis v. Neilson case where the adoptees were total strangers to the settlor but more to the point the beneficiary, Nielson, just before his fortieth birthday adopted six people who had no family relationship with Nielson--this Missouri resident adopted " acquaintances" who lived in Florida, a nephew residing in California and in addition to his secretary one of the secretary's sons who lived in Oklahoma.
The pattern of giving funds to Sacha and Mischa Richter continued after the actual adoption which evinces a continuing close relationship between Eder and Sacha and Mischa fitting in with the Davis v. Neilson analysis just referred to by the court.
Thus after May 1, 2010 John Eder evidence of checks written for Mischa were introduced into evidence totaling $53,600 of which $50,000 was for the purchase of a home. Also after the May 2010 date Sacha received checks totaling $12,880. The total for Mischa and Sacha for this post-May 2010 period was $66,480. Many of the post-2009 checks and in fact all of the checks for Sacha and Mischa fall into the category of " help me out" expenditures typically made in a familial type setting or where such a relationship exists. For example an August 2011 check to Mischa was made to help him set up one of his photography exhibits. A March 2012 transfer of funds was made to Misha and his wife who were living in England. A check was sent to Sacha in 2011 to help cover the expenses of framing his artwork and conducting exhibitions of that artwork.
In the 1991 to 2005 period checks totaling over $61,000 were made out by Eder to Sacha and Mischa, but in only the two-year period from 2010 to 2012 checks for over $66,000 were written for them all of which seems to underline the full bearing of the adoptive intent with its concommitment responsibility recognized by John Eder but also consistent with the earlier pattern of a close relationship.
It is interesting to note that this $66,000 transfer of funds was made after the adoption of the Richters and before any funds from the 1991 Trust could be distributed. If the sole purpose of the adoptions was to harm David Eder and reduce his share of the Trust distribution why would John Eder distribute this amount of non-Trust money to Mischa and Sacha? The answer seems apparent that they were given the money because they had an immediate need for it--this underlines, for the court at least, that they were natural objects of his bounty and thus the decision to adopt was indeed a product of Eder's desire, in his mind, to confirm the familial relationship that had existed for years and was independent of any desire to harm David Eder's financial expectations from a Trust distribution.
The plaintiff Eder takes two approaches in an attempt to question the closeness of John Eder's relationship with Mischa and Sacha Richter all of which is aimed at showing the adoptions were a sham or subterfuge concocted to reduce David Eder's share of the 1991 Trust. First it was brought up on the cross examination of John Eder that he gave much more money by way of " gifts" to David Eder than he gave to Sacha and Mischa after 1991 but the " gifts" and what they embodied was not defined so the ultimate response to the point sought to be made is--so what? The fact remains that over $120,000 was given to Sacha and Mischa over a twenty-year period--hardly to be characterized as casual or minuscule contributions. Besides, and more to the point, in analyzing a case like this all of these disbursements to Sacha and Mischa Richter occurred in a setting previously discussed, wherein the evidence appears to establish that John Eder spent much more time with Sacha and Mischa while they were children and adults than he spent with his biological son David Eder.
In a further attempt to characterize the adoptions as a sham and not the expression of a close relationship that developed between Eder and Sacha and Mischa Richter the plaintiff also points out that although John Eder claims to have had a close relationship with the Richter children from 1975 to 1991, when the Trust was created, they were not explicitly mentioned as beneficiaries in the Trust instrument and Eder could have adopted Sacha and Mischa long before the actual 2010 adoption.
But our statutes explicitly permit and recognize adult adoptions, it would turn the ameliorative purposes of these statutes on their head if where a Trust document does not explicitly exclude such adoptions an adoptee would be barred from beneficiary status because the adoption occurred before the Trust assets were to be distributed just because the adoption occurred later rather than sooner. Such a result cannot be arrived at when Section 45a-734(b) and the Trust language are read together. It is also true that when the Trust was formed in 1991 Sacha and Mischa Richter were barely out of their teens and/or just beginning college so that they would not have the need for resources to keep a trade running or to buy a home for example--the trust was not to terminate until 2011 and post-1991 Eder contributed financially to the adoptees and kept up the relationship the court has described.
Standing alone the foregoing discussion leads the court to conclude Sacha and Mischa Richter were natural objects of John Eder's bounty, to paraphrase, Davis v. Neilson, supra and, as the court said in another Missouri case, when there is doubt about the intended beneficiary the " telling circumstances" to decide the question " is the relationship of the testator to the beneficiary, " Gannett v. Shepley, 351 Mo. 286, 172 S.W.2d 857, 861 (1943). The court concludes here that relationship was a close one and nothing presented indicates that the Trust language read in light of our statutes would preclude recognizing these adoptions as valid.
2.
But in support of his argument that the adoptions were a sham, the plaintiff also contends they never would have taken place except for the fact that John Eder had a bitter falling out with his son in 2009 over an investment decision David Eder had made. John Eder was angry as to how his son administered a 1971 Trust; he was fired as trustee. As a result of the animosity not only was the share to be received by David Eder reduced upon the termination of the 1991 Trust--from receiving the full distribution to receiving one-third, the other two-thirds going to be split equally between Sacha and Mischa Richter but the animosity was evidenced by an amendment to John Eder's will which left nothing to David Eder. The anger of John Eder was established according to the plaintiff by the resulting just mentioned actions but also by a conversation between Eder and his son in which he told David Eder that if David Eder lost his money he was going to kill him. His relationship with his father changed to the point that John Eder left nasty messages on David Eder's answering machine, screaming and swearing at him. The two have not had any contact from these 2009 incidents to the date of the trial in July 2015.
John Eder on his part does not deny the foregoing and his animosity as a result of David Eder's handling of trust investments. He even called an attorney who is a trustee of the 1991 Trust and according to the attorney who testified that Eder wanted to " pull back" all the gifts he made previously to David Eder. Eder did say he apologized at some point for his violent telephonic outburst.
He gave the following reasons for his adoption of Sacha and Mischa Richter. He was of the opinion that David Eder had " a lot of money" he seemed " quite well off" as a result of the settlement of a suit against his sister as a result, apparently of an inheritance dispute. He had a general idea of Sacha and Mischa's financial resources and said as compared to David Eder there was a drastic contrast. These financial observations were not contradicted by any testimony or evidence presented by the plaintiff. David Eder's lifestyle indicates he had great wealth. He testified he stopped working for Eder Brothers, a company set up by his grandfather, in 2000 and since then he testified: " I have taught some tennis privately as well as at a public facility and around 2010, in October, my mother was diagnosed with stage four ovarian cancer. And I spent a lot of time taking care of her."
Specifically John Eder also said: " I mean the trouble I had with David Eder was a catalyst for me to start paying more attention to things that I haven't been paying attention to. And when I realize that I had the opportunity to adopt Sacha an Mischa, who were more or less my kids the way they grew up, I thought why not include them in this if I could why not share my estate with them. Why not make our relationship legal " (7/27/16, page 94). On the following page John Eder went on to say regarding the proceeds of the 1991 Trust which he felt were part of his estate: " I was upset with David Eder and I thought that Sacha and Mischa being not as well off as David Eder they should be included in all of my estate. And that (the 1991 Trust) was part of my estate. And I had the option to include them and I did." He later said he hoped, people would not protest if they had plenty of money but he had no idea what David Eder would do following the adoptions. In the new 2013 will Eder said he left a small portion of his estate to Mischa and Sacha with the rest to charity. Why would he leave anything in his will to Sacha and Mischa if he just adopted them to harm David Eder. Does this not show again they were the natural objects of his bounty; the money from the will would not accrue until he died but the adoptions would secure money immediately (leaving aside litigation).
Technically this rendition is not completely accurate since an irrevocable trust involved which Eder's grandfather funded--in that sense it is not part of his " estate." But the trust document gave Eder the power to adopt children and/or have more natural children and he exercised this power for the reasons stated.
Given the common sense approach set forth in Davis v. Neilson, supra, the court has concluded Sacha and Mischa must be considered a natural object of his bounty. As said in Davis v. Nielson " Inquiry into motives behind an adoption should be irrelevant . . . if the court presumes the testator to have included in his or her gift class individuals who would be a natural object of his or her bounty." Thus the court went on to say " even if the desire to make an adoptee qualify as a beneficiary motivated the adoption, that motive is immaterial so long as the courts presume a testator (or a settlor of a trust) to include within a gift class only persons who have a familial tie to the testator's (or settlor's) family." The Massachusetts adoption is not contested. Under the terms of the Trust John Eder post-1991 could have had children or adopted children who upon termination would receive equal shares. True he said his problems with David Eder served as a catalyst for him to consider the prospect of adoption considering his long relationship with Sacha and Mischa and the wealth of Eder--common sense a la Davis v. Nielson would seem to dictate the adoptions were not a sham or subterfuge just to hurt David Eder but had other motives consistent with John Eder's affectionate and long-term relationship with Sacha and Mischa.
We do not have here a beneficiary adopting his wife or 95-year-old grandmother or mere acquaintances which would have the effect of reducing the share another beneficiary clearly would have had the right to receive. These two adoptees spent a good portion of their minority with John Eder, cf. Solomon v. Central Trust Co., 63 Ohio St.3d 35, 584 N.E.2d 1185 (Ohio, 1992) and he continued to help them financially and maintained contact with them for the thirty years after they left his home.
Another argument to support the theory that the adoptions were a subterfuge undertaken to harm David Eder's financial prospects after the bitter episode with his father is the fact that the father, John Eder, has enormous wealth. He could easily distribute monies to Sacha and Mischa without going through the ritual of adoptions which practically speaking only served to reduce David Eder's share upon termination of the 1991 Trust.
It is no doubt true that John Eder at the time of all these events was an extremely well-off individual. A 1971 Trust had been set up and between 1971 and 2000 whenever he needed money his father would send it to him, since the father managed the 1971 Trust. That Trust is no longer operative and has been wound up or is still in the process of being wound up but John Eder agreed at trial that a proceeding was brought to terminate the Trust in 2011 and thereafter millions of dollars were distributed to him. But John Eder's wealth was not confined to the distributions he has received from the 1971 Trust which took place after the 2009 blow up with his son David Eder. John Eder testified that from 1980 to the present date of the trial in July 2015 " close to one hundred percent" of his income came from various trusts set up by his father. Thus apart from any distributions he received from the 1971 Trust, between May 1, 2010 and July 30, 2010--a three-month period--John Eder wrote out checks to Sacha and Mischa totaling $49,000.
It could also be argued that his expressed concern for Sacha and Mischa because " they're artists they didn't have much money" could have been addressed by leaving them money in his will without David Eder's share in the 1991 Trust. The problem with any such argument on the issue at hand is that the needs of Sacha and Mischa from John Eder's perspective were present and could not await Eder's death which could take place years in the future.
The court, in any event, does not accept the argument that sham or subterfuge can be established by the fact that instead of giving money to Sacha and Mischa from his other sources of great wealth he adopted them merely as a way of reducing David Eder's share of the 1991 Trust upon its prospective termination. If ala cases like Davis v. Neilson Sacha and Mischa were objects of his natural bounty for years and given their relationship Eder had a right to confirm the familial relationship by the adoption, which the court has found, why would the adoptions constitute a sham if as settlor he had the right to make the adoptions under the Trust concomitant with the results to be expected by such an action? True David Eder's share would be reduced but that would be the case in every situation where a will or trust has been set up with designated beneficiaries and an otherwise permissible adult adoption (permissible because of the familial and natural bounty aspects exists) occurs--to hold otherwise would burden the right to make an adult adoption.
At the risk of being repetitive, it seems to be uncontested that John Eder has a very expensive lifestyle--witness the lengthy trips to Morocco and Costa Rica and the fact that testimony came out that he gave even more in " gifts" to David Eder over the years than to Sacha and Mischa. At the time of the blow up with David Eder and the adoptions John Eder was still in his mid-sixties with the prospect of living for several more years which would require a large amount of funds to keep up his lifestyle. If he wanted to help Sacha and Mischa these adoptions would be the most efficient way to immediately reward them without turning to his other assets which he would need to support that lifestyle. All of this in a context that given the resources of the 1991 Trust David Eder's " reduced share" still would entail a very large sum of money to be given to an individual who already was very wealthy.
Related to all the previous positions taken by the plaintiff is the claim that a strong, close relationship of father to children existed between Sacha and Mischa Richter and their biological father Daniel Richter and this relationship continued after the Eder-Richter adoption.
The plaintiff did an effective job of advancing the foregoing factual position which it is claimed goes to establishing the adoptions were really a sham and subterfuge.
On cross examination John Eder admitted that the adoptions did not change or have any impact on his relationship with Mischa or Sacha Richter. It did not change where they lived for example. Sacha lived within his father's house, Daniel Richter, at the time of trial but Eder said the father does not himself, live in Provincetown. The Richter family " has long ties to Provincetown." Eder further conceded that both Mischa and Sacha spent time with their biological father.
John Eder also testified that he has been present when Mischa introduced Daniel Richter as his father before the March 2010 adoption and he never did so with him, John Eder. A birthday card from Mischa to Eder was introduced into evidence and Mischa referred to Eder as John.
After his relationship with Jill Richter, the mother of the Richters, ended, Mischa moved out of Eder's house and went to live with his biological father for a year in Darien then moved to California to live with his biological father. Apparently Mischa was not happy with this arrangement so he moved back to live with a friend in Darien.
Mischa was asked whether after he told his biological father about the adoption whether anything " has really changed with (his) relationship with (his) biological father" --he answered " no." He also decided to keep his last name as Richter despite the adoption but this as a factor is not that supportive to the plaintiff's argument. We do have an adult adoption here and when Mischa Richter was asked about his failure to change his surname from Richter he answered . . . " yeah, I'm an artist, so, I've been going by Mischa Richter and published, and so, yeah, I wouldn't . . . I wouldn't change my name . . ." Mischa also says since the date of the adoption he still goes on vacations with Daniel Richter his biological father. His Provincetown home still was not built in July 2015 so he stays in his father's house in the winter--his father " usually is not there in the winter." When his father is in Provincetown he visits him regularly. Mischa also said that he holds Daniel Richter out publically as his father but since the adoption he says to people I have two fathers " I mean I've kind of always said that, but now it's legal, so I--I point that out." In 2010 he had a photographic exhibit in the Provincetown Museum of Art and he gave a talk--he did not recall opening the talk by referring to his father but he might have--" it's possible." But he then was asked whether in the talk he said that his " father had presented in one of those galleries there" and he said he was referring to Daniel Richter when he said that.
However, Mischa denied that he only refers to John Eder as his father when the Annuity Trust is being discussed. He said " in that exhibition I had a piece which had a photo of both my fathers, and it said father and father." He also seemed to agree that at the time of his deposition that his biological father had not disinherited him as a result of the adoption but added: " I might have said, but that's still as far as I had known and my father (Daniel Richter) changes his mind. And who knows what's going to happen." He admitted that his father has not told him he was disinherited.
Recent pictures dating back to 2009 were introduced into evidence over objection since they were not disclosed before trial in the list of the defendant's exhibits. But they show Mischa and Sacha with Daniel Richter or with Jill Richter and Daniel Richter. Apart from any pictures, however, there's no dispute that Mischa and Sacha still see their biological father. Mischa said that since 2008 he has spent three Christmases with his biological father. He said he told his father John Eder wanted him and his brother to benefit in his estate and Mischa knew a substantial amount of money would accrue to him on the termination of the 1991 Trust. Referring to the adoption and Daniel Richter's feelings about it Mischa said " it's tricky for him but he definitely accepts it." Daniel Richter still holds Mischa out as his son, Mischa calls him " Dan or Pop." Mischa also testified that he probably still would have gone through with the adoption if there was no 1991 Trust.
Sacha Richter also testified and he said he still goes by the name of Richter; he did not change his name as a result of the adoption. Sacha also testified that he would not have gone through with the adoption if he knew the purpose of the adoption would be to reduce the share David Eder would get upon the termination of the 1991 Trust.
Sacha did say that as of the time of trial in July 2015 he lives at a property owned by his father. Sacha also admitted receiving money from his father, Daniel Richter. He stated he works for his father in exchange for rent for living in his father's house. In 2014 he received $8000 from his father. Sacha said he received payment from his father since 2006.
Sacha agreed with plaintiff's counsel inquiry that like Mischa his relationship to his biological father has not changed since the adoption--his relationship with him was excellent.
The court asked Sacha to explain in his own words why he agreed to go forward with the adoption Sacha answered as follows:
" A Essentially, John asked me if he wanted to--if I wanted to involved and to make our relationship legitimate that we've experienced for years. And I wanted that, I've always wanted that. I've--I've always considered him my real father. My other father, my biological, I've not always gotten along with, and John's been closer to me. And I was thrilled when he said to me I want to make this relationship legitimate. And you'll share in everything I have. And I was excited about that."
When the court asked Sacha if he would have gone through with the adoption if there was not a 1991 Trust from which he would get much money upon the termination of the Trust if he were to be adopted Sacha answered " I consider my father and always have. I've considered my biological father, obviously, because he's my biological father." (The court takes the first sentence to refer to John Eder.)
On his part John Eder said his conversation with Mischa and Sacha when he first broached the idea of adoption was emotional for him. He testified he told them he considered them as much as being his sons as David Eder was. He said that he told them I have spent forty years with you and he thought they should share in the trust for that reason--why should the trust only go to one child who has plenty of money and not be shared by two " children that don't have that much." He spoke to Mischa and Sacha three or four months before the adoption speaking to Mischa first. Mischa did not agree to the adoption immediately, " he was touched but . . . he had to face his biological father." The thought of telling his father and mother was, Eder felt, a " bit disturbing . . . to him." Several weeks later Mischa agreed to the adoption. Eder approached Sacha sometime after speaking with Mischa and Sacha was more hesitant about the idea than Mischa. Eder speculated at the time he was living on his father's property and Sacha did not know how that would affect his living condition. These conversations were emotional for all concerned but he felt both Mischa and Sacha always considered him to be their father.
The court will try to deal with the evidence of the ongoing relationship of Mischa and Sacha with their biological father from two perspectives. (1) Does the existence of such a relationship standing alone provide proof positive that the adoptions were a sham and subterfuge? (2) Given the animosity between John Eder and his son David Eder, is that the only reason the adoptions occurred in that effecting them would reduce the share in the Trust distribution he was otherwise entitled to receive when the Trust was to be terminated?
(a)
The state adoption statute (§ 45a-731) and the provision for adult adoption (§ 45a-734), given a common sense interpretation of the consequences that would necessarily arise from them in the lives of adoptees adopting and biological parents, seem to dictate that recognition and in some respects encouragement of a strong relationship with biological parents post adoption, is humane and recognized feature of the concept of adoption.
Concerning adoptions where minors are the adoptees, Section 45a-715 provides in subsection (h) that where parental rights are terminated " (h) Either of both birth parents and the intended adoptive parent may enter into a cooperative post adoption agreement regarding communication or contact between either or both birth parents and the adopted child." In subsection (i) it is provided that " (I) If the Court of Probate determines that the child's best interests will be served by post adoption communication or contact, the court shall so order." A court can grant such communication or contact if among other considerations " (3) consent to post adoption communication or contact is obtained from the child, if the child is at least twelve years of age." Subsection (m) states that " (m) A disagreement between the parties or litigation brought to enforce or modify the agreement shall not affect the validity of the termination of parental rights or the adoption and shall not serve as a basis for orders affecting the custody of the child."
It is clear that the statutory scheme recognizes the fact that post-adoption contact with biological parents in many circumstances is a humane approach in the adoption process. How on earth can strong emotional ties with biological parents not continue and develop over the course of a minor's life when communication and contact is permitted? At twelve years and older the child must be asked to consent to the contact--a process which would entail the child's affirmative desire to continue contact with his biological parents.
Interestingly the Massachusetts statutes, see MGLA 210 § 6C also provide that prior to entry of an adoption decree " prospective adoptive parents and a birth parent may enter into an agreement for post adoption contact or communication between or among a minor to be adopted. The prospective adoptive parents and the birth parents." The adoptions here took place in Massachusetts.
Apart from any statutory provision the adoptive parents and the birth parents can enter into so-called open adoption agreements giving the birth parents the right to visitation with the adoptive child. In Michaud v. Wawruck et al., 209 Conn. 407, 551 A.2d 738 (1988) the court decided such open adoption agreements are not against public policy. The court cited a New York case, People ex rel. Sibley v. Sheppard, 54 N.Y.2d 320, 429 N.E.2d 1049, 445 N.Y.S.2d 420 (1981) and the court said the Sibley court " concluded as we do, that the statutory creation of an adoptive family does not automatically require complete severance of the child from all further contact with former relatives." The Michaud court went on to say that " Traditional models of the nuclear family have come, in recent years, to be replaced by various configurations of parents, step parents, adoptive parents and grandparents, " id., page 415.
These so-called open adoption agreements are apparently quite common. The Connecticut Judicial Branch Law Libraries puts out various guides for pro se litigants and attorneys in various areas of the law. One published in 2015, is entitled " Adoption in Connecticut: A guide to resources in the Law Library, " discusses in Section 6 of the guide Open Adoptions and Agreements whereby adoptive parents and birth parents can agree to provide contact between the birth parents and the adopted child, see pages 22 through 26, Michaud v. Wawruck, supra is cited and quoted from and the article refers to legal encyclopedias, texts, treatises, and law review articles on the topic.
Suffice it to say when child adoptees are involved, continued contacts between birth parents and the adopted child which would naturally involve the maintenance of familial feelings are not held in any way to interfere with the integrity of the notion of the occurrence of a valid and continuing adoptive relationship with the adoptive parents. Why would not the same conclusion apply in the case of adult adoptions?
True, the statutes and case law and practice that have been just discussed all involve children who have been adopted. But as note § 45a-734 of our statutes permit adult adoptions. Even more so than in the case of child adoptees, if a person is not adopted until he or she is an adult there is even more likelihood that with the passing of the years a strong relationship with the biological parents will have developed. The statutory language certainly does not indicate this would somehow invalidate recognition of the validity of an adult adoption. And common sense seems to indicate, as just mentioned, that when an adult is adopted he or she is more likely to have a solid and affectionate relationship with biological parents, developed as it was, over the years.
The observation by the appellant that contact and communication between birthparents and the adopted child " is the exception rather than the rule" is not convincing, at least to the court. It is argued that § 45a-707 provides for complete severance of the relationship between birthparents and the adopted child. And the statutory scheme mandates " a strict statutory process" before communication and contact between the birthparents and the adoptee can be implemented. These observations miss the point. Even accepting them, it is still true that the integrity and finality of the adoption is not thrown into question by post-adoption contact and communication. Statutory blessing, in fact, is given to such contact. Of course courts operating under the statute involving minors must pay strict attention to the best interests of the child-children are involved but this is not a factor where there has been an adult adoption.
Besides, these open adoption agreements are made, even as they involve children, outside the statutory scheme, see Michaud at 209 Conn. page 408 where court said: " The sole issue in this case is whether a written visitation agreement between a genetic mother and adoptive parents violates the public policy of this state (court's answer--no)." See also pp. 409-10 where the court said: " The agreement between the parties was placed on the record in the Superior Court on September 16, 1983. Acquiescence in the agreement was noted, in open court, by counsel for the plaintiff (birthparent), for the defendants (adoptive parents) the commissioner and for the minor child. The agreement was not, however, made part of the subsequent decree of the Probate Court permitting the defendants to adopt the child, although the parties to that proceeding, having all appeared in Superior Court, were fully aware of its terms."
The appellant makes two other observations in a supplemental post-trial brief noting there is no evidence suggesting John Eder and Daniel Richter entered into any agreement concerning post-adoption contact and communication with the adoptees. It is argued that if the post-adoption communication and contact statute has any relevance it is evidence that the law presumes that Daniel Richter's relationship with the adoptees would be completely severed. But that statute involved visitation with children adoptees--we have here an adult adoption. There is no rational requirement that birthparents and adoptive parents would be expected to have formal or informal agreement regarding communication and contact.
The appellant further observes if John Eder and the adoptees " got together and agreed nothing would change after the adoption" that would be highly probative of the contention that this adoption was a sham. It would involve using the adoption laws to sever all legal rights between the adoptees and Daniel Richter premised on a prior agreement that they would all continue as if such right had not been affected--an exercise in " futility" that would underline a lack of good faith. Again we are dealing with adult adoptees--why on earth would the presence or absence of an agreement regarding contact and communication be a prerequisite to presuming such contact and communication would continue?
(b)
In a discussion that will be somewhat repetitive and may be irrelevant as the court will discuss shortly, the court will discuss certain aspects of the adoption process in this case which for the plaintiff underline the point that it was a sham. Davis v. Neilson, supra, discusses the fact that the adoptee keeps the biological parent's surname as a consideration in deciding whether the adoption is a subterfuge. Both adoptees keep Richter as their last name. But both are adults with professions and Mischa responded that he has used the name Richter; he is an artist and has been going by that name and has published under it. Mischa said the adoption was a little " tricky" for his biological father. From a humane point of view it would be quite understandable that upon adoption they would not want to change their last name out of concern for the feelings of a man who was their father for years until the adoption. Also from the testimony, as near as the court can calculate, the adoptees in 2010, when the adoption occurred were at least in their mid-forties--all the more reason not to have considered changing their last name from Richter.
Furthermore, there is no evidence of some grand conspiracy between John Eder and Mischa and Sacha Richter to go through with a sham adoption simply in order to reduce David Eder's share in the trust. John Eder testified that he told Mischa about the prospect of an adoption and that he considered him as a child and wanted Mischa to share in the annuity distribution. John Eder said Mischa did not agree right away he surmised that " telling his mother and father was a bit disturbing, I think, to him." It took several weeks before Mischa indicated that he would go forward with the adoption. Sacha as the court noted was even more hesitant than Mischa about the idea. Hardly the response to be expected from co-conspirators solely intent on receiving a monetary jackpot.
Mischa said he probably would have agreed to the adoption if there was no Annuity Trust. Sacha read the Trust document before the adoption and understood, absent the adoption, that David Eder was to receive one hundred percent of the distribution. He said he would have seriously considered the adoption even if there was not a Trust from which he would receive a lot of money--he considered John Eder his father and Daniel Richter as his father. Both adoptees said they would not let themselves be adopted " to hurt someone."
In any event, the relevance of the foregoing discussion in this subsection is open to question, however. Absent a showing of some agreement between John Eder and these adoptees to enter into an adoption scheme solely to deprive David Eder of the full share of the Trust distribution thus defeating the intent of the Trust distribution, it is the motive of John Eder that is the controlling consideration as to whether this was a sham as opposed to a valid and humanly understandable adoption.
In Davis v. Neilson, supra, as this court has noted, the court said: " Even if a desire to make the adoptee qualify as a beneficiary motivated the adoption, that motive is immaterial so long as the courts presume a testator to include within a gift class only persons who have a familial tie to the testator's family. Restricting the presumption of inclusion to only individuals who are natural objects of the testator's bounty should be sufficiently effective in sifting the bounty hunters from the case." To the court at least, the record is irrefutable that John Eder had a familial bond to the adoptees and they were natural objects of his bounty. He lived with them and their mother for ten years when they were young children and supported them while in his home and helped them pay college expenses--all of this prior even to the creation of the 1991 Trust. Since 1991 he has intermittently given the adoptees thousands of dollars up to and after the time he had his dispute with his son. He was in contact with them on a frequent basis up to the creation of the trust and saw them often after that going to their weddings no less. At page 41 of this decision John Eder is quoted as giving a concise explanation of why he adopted Mischa and Sacha which is not contradicted by any of the evidence. And per Davis v. Neilson once the familial and natural object of bounty test is met speculation about and examining different evidentiary elements for the ascertainment of " true" motivation is not appropriate and would not lead to consistent results in these cases which could be then reviewed by appellate courts to give appropriate guidelines in an area of the law that requires them. In every one of these cases, especially involving adult adoptions, a beneficiary who would otherwise receive a larger share of a Trust or Will distribution absent an adoption, has his or her share reduced. But if a state has a statutory scheme permitting the adoption and the settlor has the right to adopt someone thereby making them part of the distribution, courts should recognize the adoption if, as previously noted, the adoptee has a familial relationship to the settlor or adopting party and is a natural object of his or her bounty--otherwise motives apart from this factor would have to be examined involving courts in evidentiary expeditions in sometime complicated family situations. To look at it from another perspective, what if the adoption had occurred in 2008 before the dispute with David Eder? There would not be any question, in the court's opinion, that the validity of the adoptions could be questioned; our statute permits adult adoptions, and the Davis v. Nielson test of prior strong prior bonding could be established. Here the adoption occurred in 2010--the only factor that has been changed is the dispute with David Eder. Disputes and falling outs in families do occur and family relationships and changes therein are common occurrences. Should the 2008 adoption be fine but the 2010 adoption be styled as a sham because, as between his biological child and the two adoptees he regarded as objects of his bounty and had a familial type relationship for years, he decided that, all things considered, after a dispute with his son and examining the respective financial situations of David Eder and the adoptees, which the dispute prompted, he should take steps to let the adoptees share in the trust--a step which would still leave David Eder a wealthy person. Courts should not be allowed to examine the appropriateness of motives in such situations because there is no rational guideline to evaluate them and perhaps more to the point it would create a judicially manufactured limitation on the liberal policy of permitting adult adoptions.
The plaintiff maintains John Eder could have adopted Sacha and Mischa at any time after the Trust was set up but did not so until 2010. Thus, the plaintiff argues that the adoptions were a sham that was merely responsive to John Eder's bitter dispute with his son David Eder. But this does not belie the existence of a strong preexisting relationship between John Eder and the adoptees. Also over the years he distributed thousands of dollars to Sacha and Mischa and the dispute with the son according to Eder caused him to reflect on the needs Sacha and Mischa had as opposed to his son who he regarded as his children--hardly a reason to invalidate an otherwise valid adoption.
For all the foregoing reasons the appeal is dismissed.
The court reaches this conclusion whether a preponderance of evidence standard is applied or a clear and convincing standard is applied given the fact that fraudulent activity is alleged.