Opinion
No. 12–P–160.
2013-01-25
Jeffrey W. ROBERTS v. Mary E. BACHAND & others.
By the Court (GREEN, GRAHAM & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Pursuant to an agreement for judgment, a decree entered on March 3, 2008, appointing defendant Lisa Charette coadministrator with the will annexed of the estate of Rene H. Bachand. On March 5, 2008, two additional judgments entered appointing Charette cotrustee of the Mary E. Bachand Trust (Mary Trust) and the Rene H. Bachand Trust (Rene Trust).
The decree provides that the coadministrators “shall jointly be responsible for payment of all expenses and disbursements of the estate, and all accounts established by them as fiduciaries shall require each of their signatures for authorization. Statements for any investment account or interest-bearing account with regard to the estate shall be provided to all interested parties quarterly.” Similar directives were contained in the judgments on the two trusts, with the additional requirement that the cotrustees file annual accountings of the trust with the court, giving proper notice to all interested parties. Pursuant to the decree and judgments, Bruce D. Clarkin was appointed to be Charette's neutral cofiduciary. The plaintiff, Jeffrey W. Roberts,
The plaintiff, Jeffrey W. Roberts, commenced three underlying actions in the Probate and Family Court requesting instructions as to his authority to act as trustee of the Mary Trust, trustee of the Rene Trust, and administrator of Rene Bachand's estate. The decree and judgments entered pursuant to an agreement for judgment, which was incorporated therein.
filed a complaint for contempt on January 9, 2009, and by judgment dated October 2, 2009, a judge of the Probate and Family Court held Charette in contempt for failure to provide the financial information required by the judgments and ordered her to produce it. On February 9, 2010, Roberts filed a second complaint for contempt alleging that Charette failed to comply with the March, 2008, judgments and decree by failing to provide financial information, failed to cooperate with her cotrustees/co-administrators causing their resignations, failed to comply with the court order of contempt, and failed to comply with a bench order of January 27, 2010. As a remedy, Roberts sought removal of Charette as coadministrator and cotrustee.
Roberts was attorney to the late Rene Bachand.
Following a trial on the second contempt action, the judge found the following. Due to Charette's failure to cooperate with Clarkin, he resigned on or about September 24, 2008. Following his resignation, Charette unilaterally withdrew $38,000 from the Mary Trust. A second cofiduciary was appointed on April 17, 2009. She later resigned when Charette refused to cooperate with her. After the second neutral cofiduciary resigned, Charette withdrew virtually all of the funds from the two trusts and all of the liquid assets of the estate and transferred substantial sums to herself and her husband. In addition, Charette failed until the eve of trial to provide an annual accounting and even then, it was incomplete because it did not fairly represent the estate and trust transactions. The judge found Charette in contempt for acting without her cofiduciaries' signatures and for failing to file annual accountings. Relying on his authority pursuant to G.L. c. 215, §§ 34 and 57, the judge removed her as cotrustee and coadministrator. Charette appeals.
She is the only defendant on appeal.
On appeal, Charette argues the judge erred in finding there was a “clear and unequivocal command” that precluded her from making payments or disbursements from the trusts to herself and her husband pending the appointment of a new cofiduciary. The judge found Charette in contempt of the court's clear and unequivocal orders dating back to March 3, 2008. Specifically, he found her in contempt for failing to obtain her cofiduciaries' signature on transactions. The judge's finding that Charette refused to cooperate with her cofiduciaries, thereby forcing them to resign, only to then make unilateral disbursements to herself and her husband was supported by the record. No reasonable reading of the orders supports Charette's interpretation that she was entitled to make disbursements unilaterally, particularly to herself.
Charette contends that the judge's ruling that she was not authorized to make disbursements unilaterally was inconsistent with the ruling that she did have an obligation to unilaterally provide an accounting to interested parties. No inconsistency exists. The decree and judgments are clear that the cofiduciaries are required to submit annual accountings for the trusts and the estate. See Demoulas v. Demoulas Supermarkets, Inc., 424 Mass. 501, 565–567 (1997) (clear and unequivocal order is one which provides “adequate notice of the required or prohibited activity”). Charette refused to submit an accounting and when she finally did, it was incomplete. There was no error in finding she deliberately disobeyed the court's order to provide accountings.
Charette also argues that under the doctrine of issue preclusion or claim preclusion, Roberts was prevented from raising any issue in the second contempt action that could have been raised in the first contempt action. The claim is unavailing. She cites no authority for the proposition that Roberts should have amended his first contempt complaint when the first accountings were not forthcoming. This argument therefore fails to rise to the level of appellate argument. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Even if we were to consider the claim, it would fail, if for no other reason than because many of the facts alleged in the second contempt action concerned continuing activity. See Larson v. Larson, 30 Mass.App.Ct. 418, 426 (1991). In addition, Charette's self-dealing was not discoverable given her refusal to share the financial status of the trusts and estate. Contrast Jackson v. U.S. Trust Co., 361 Mass. 333, 339 (1972) (claim preclusion applicable where claims could have been tried in first proceeding and “[n]othing new has been discovered since which was not discoverable then”).
The judge's findings regarding Charette's self-dealing and refusal to comply with her cofiduciary duties supported his decision to remove Charette as a cofiduciary of the trusts and the estate. See Cooney v. Montana, 347 Mass. 29, 38–39 (1964); see generally Steele v. Kelley, 46 Mass.App.Ct. 712, 742 (1999). Moreover, the judge was entitled to consider the totality of Charette's conduct, including the prior contempt judgment, in deciding whether to remove her as a cofiduciary. There was ample reason to conclude the “continuance of the [fiduciary] in office would be detrimental to the trust.” Steele v. Kelley, supra (citation omitted).
Judgment of contempt affirmed.