Opinion
FSTCV186034237S
09-26-2018
Herbert LEVETOWN v. Rochelle LINDER
UNPUBLISHED OPINION
Jacobs, J.
BACKGROUND
This case comes before the court on appeal from a November 7, 2017 decree of the Stamford Probate Court appointing Rochelle Linder ("Rochelle") as conservator of the estate and person of her mother Bernice Levetown ("Bernice"). The appeal is brought by Herbert Levetown ("Herbert"), Bernice Levetown’s husband and Rochelle Linder’s mother. The court heard oral argument on March 6, 2018. Counsel for both parties filed post-hearing briefs on April 13, 2018.
On October 20, 2017, the Stamford Probate Court conducted a hearing concerning the application for appointment of Rochelle as involuntary conservator for Bernice. The petitioners Rochelle and her sister Elizabeth ("Beth") were present and were represented by counsel. Neither Herbert nor Bernice attended the hearing, but both were represented by counsel who attended the hearing. The court heard the testimony of Rochelle, Beth, and Herbert’s voluntary conservator. The court referenced exhibits records previously provided to the court.
In arriving at its decision as set forth below, this court has reviewed and considered the file, the probate court decree [# 100.3, Ex. A], the transcript of the probate hearing [# 100.30], the arguments of counsel, the post-hearing briefs of counsel [# 106.00, # 107.00], and the relevant statutes and case law.
STANDARD OF REVIEW
"An appeal from a Probate Court to the Superior Court is not an ordinary civil action ... When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate ... In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common-law jurisdiction, but of a Probate Court ..." (Internal quotation marks omitted.) Przekopski v. Przekop, 124 Conn.App. 238 (2010).
"Pursuant to General Statutes § 45a-186(a), as amended by P.A. 07-116, § 2, the court’s review of the plaintiff’s appeal [is] conducted on the record. This standard of review reflected a change in the law regarding review of probate appeals taken under § 45a-650. Section 45a-186(a) provides in relevant part: ‘any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may ... appeal therefrom to the Superior Court ... Appeals from any decision rendered in any case after a recording is made of the proceedings under section 45a-650 shall be on the record and shall not be a trial de novo.’ " Falvey v. Zurolo, 130 Conn.App. 243 (2011).
"The court review[s] the plaintiff’s claims pursuant to General Statutes § 45a-186b, which provides in relevant part: ‘In an appeal taken under section 45a-186 from a matter heard on the record in the Court of Probate, the Superior Court shall not substitute its judgment for that of the Court of Probate as to the weight of the evidence on questions of fact. The Superior Court shall affirm the decision of the Court of Probate unless the Superior Court finds that substantial rights of the person appealing have been prejudiced because the findings, inferences, conclusions or decisions are ... clearly erroneous in view of the reliable, probative and substantial evidence on the whole record, or ... arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion ...’ "Falvey v. Zurolo, supra, 130 Conn.App. at 248 n.8 ..." Deference is to be shown to the Probate Court’s determination regarding credibility of the witnesses before it and its factual determinations. Falvey v. Zurolo, 130 Conn.App. 243 (2011); Kirei v. Hadley, 47 Conn.App. 451 (1998).
Section 45a-186b also provides that "[i]f the Superior Court finds such prejudice, the Superior Court shall sustain the appeal and, if appropriate, may render a judgment that modifies the Court of Probate’s order, denial or decree or remand the case to the Court of Probate for further proceedings."
DISCUSSION
In its November 7, 2017 Decree [# 100.30, Ex. A], the Probate Court found that Bernice "suffers from a mental, emotional or physical condition, advance [sic] stages of dementia that results in her being incapable of managing her financial affairs and caring for herself." [Dec., p. 1.] The court found that Bernice is unable to make appropriate medical decisions and that she requires assistance with daily living activities. [Dec., p. 2.] The court found that Bernice has property rights that will be wasted or dissipated unless adequate management is provided. [Dec., p. 1.]
The court found that the appointment of a conservator was the least restrictive means of intervention available to assist Bernice in managing her financial affairs. In addition, the court found that there are no other alternative arrangements that could be put into place to adequately manage Bernice’s financial affairs. [Dec., p. 2.]
The court found that Bernice’s daughter, Rochelle, is familiar with her mother’s preferences relative to medical decisions and financial matters and that Rochelle is willing to accept the position of trust and fulfill the duties required by statute. [Dec., p. 2.] The Court found that Rochelle is qualified to serve as conservator under the requirements of [General Statute § ]45a-650(h). [Dec., p. 2.] The court appointed Rochelle to be involuntary conservator of Bernice’s person and of her estate. [Dec., p. 3.]
The plaintiff asserts that he is aggrieved by the decree and that his substantial rights have been prejudiced because the findings, inferences and conclusions in the probate court decree are in violation of the federal or state constitution or the general statues; in excess of the statutory authority of the court of probate; made on unlawful procedure; affected by other error of law; clearly erroneous in view of the reliable, probative & substantial evidence on the whole record.
Connecticut General Statutes § 46a-650 requires the probate court appointing a conservator to find (1) that the party is unable to manage her affairs without the appointment of a conservator, and (2) that such appointment is the least restrictive means of intervention available to assist the respondent in managing her affairs. Herbert asserts that the probate court’s appointment of Rochelle as conservator for Bernice’s person and for her estate was not based on competent evidence that such appointment was necessary or appropriate.
The parties agree that Bernice cannot manage her own affairs and cannot take care of her person. [Tr., p. 6.] Rochelle testified that her mother is unable to manage her financial affairs and needs constant care with her personal needs. [Tr. P. 37.] No opposing evidence was presented to support a finding that Bernice has the capacity to manage her financial affairs and is able to care for her personal needs.
The following evidence was presented at the probate hearing. Bernice’s estate consists of her share of a co-op she owns with Herbert in Fort Lee, New Jersey, [Tr. Pp. 60-61] and a long-term health care insurance policy worth $60,000.00 per year. [Tr., p. 41.] Bernice is a beneficiary to a revocable trust established by Herbert, with assets estimated at between $2,000,000 and $3,000,000. [Tr., p. 97.] Herbert also has an IRA worth $1,000,000 to $2,000,000. [Tr., p. 97.] Pursuant to Bernice’s directives prior to the onset of her dementia, Herbert has Bernice’s power of attorney, with Rochelle as backup, and Rochelle is Bernice’s current health care representative. [Per stipulation of the parties, Tr., p. 21.]
Herbert, in the early stages of dementia, has appointed Mr. Bell, a New Jersey attorney, to be voluntary conservator of his estate. [Tr., pp. 86-87.] Attorney Bell, Herbert’s voluntary conservator, testified that if Herbert exercises his right to terminate the conservatorship, then Attorney Bell would have no fiduciary duty to Bernice (Tr. Pp. 107-08.) Attorney Bell testified that he is co-trustee, with Herbert and another individual, over the revocable trust, which he prepared for Hebert and which he estimates has between $2,000,000 and $3,000,000 in assets. [Tr., pp. 87-89.] He testified that the three trustees have the discretion, by a majority vote, to provide income or principal to or for the benefit of Herbert and Bernice. [Tr., p. 103.] He testified that Herbert has made several amendments to the trust. [Tr., p. 103.] He testified that the trust is revocable by Herbert as grantor of the trust.
Evidence was presented at the probate hearing that Herbert has voluntarily turned over the management of his estate to Attorney Bell. [Tr., pp 86-87.]
The plaintiff asserts that a conservator of Bernice’s estate is not needed, as her estate is being adequately managed under the current arrangement. The probate court found that Bernice has property rights that will be wasted or dissipated unless adequate management is provided. [Dec., p. 1.] This court concludes that competent evidence supports the probate court’s finding.
The plaintiff asserts that Bernice’s personal needs are being adequately met by the service of Rochelle as her health care representative. Rochelle testified that her mother is currently receiving very good residential care at Brighton Gardens. [Tr., p. 52.] Attorney Bell testified that Bernice’s bills are currently being paid by Attorney Bell on behalf of Herbert. [Tr., pp. 108-09.] Rochelle testified that Bernice may require a more intense level of care which would necessitate additional financial support. [Tr., p. 39.] Evidence was presented that such support would come from the revocable trust, subject to a majority vote of the co-trustees. [Tr., pp. 100-03.]
The plaintiff asserts that no conservator is needed because Bernice’s estate is currently being adequately managed by Herbert’s voluntary conservator and revocable trust. No evidence was presented the current arrangement provides Bernice’s estate with future protection. The probate court found that Bernice has property rights that will be wasted or dissipated unless adequate management is provided [emphasis added].
Attorney Bell testified that he has discussed the possibility of a second New Jersey attorney, described by Attorney Bell as Herbert’s long-time friend and attorney, to serve as conservator of Bernice’s estate. [Tr., p. 90.] Herbert’s counsel suggested to the probate court that, if the probate court determines that a separate conservator for Bernice’s estate should be appointed, this gentleman would be a more appropriate person to serve as conservator of Bernice’s estate than Rochelle. (Tr. p. 90-91.)
Rochelle testified that, if appointed conservator, she intends to bring a dissolution action against Herbert on behalf of Bernice. [Tr., p. 70.] The probate order states, "The conservator named above (i.e. Rochelle Linder) is appointed conservator of the person and estate ... The conservator shall have authority over the financial affairs in the following areas: ... Claims and litigation, including but not limited to commencement of a dissolution of marriage action." [Dec., p. 3.] The plaintiff asserts that the probate court overstepped its authority in authorizing Rochelle to commence a divorce action against Herbert on behalf of Bernice.
CGS section 45a-650(m) states:
The court shall assign to a conservator appointed under this section only the duties and authority that are the least restrictive means of intervention necessary to meet the needs of the conserved person. The court shall find by clear and convincing evidence that such duties and authority restrict the decision-making authority of the conserved person only to the extent necessary to provide for the personal needs or property management of the conserved person. Such personal needs and property management shall be provided in a manner appropriate to the conserved person. The court shall make a finding of the clear and convincing evidence that supports the need for each duty and authority assigned to the conservator.
A conservator has the authority to institute a dissolution action on behalf of a conserved individual Luster v. Luster, 128 Conn.App. 259 (2011). This court concludes that the probate court did not err in authorizing the conservator to commence a dissolution action against Herbert on behalf of Bernice.
Section 45a-650(h) states, in relevant part: "In considering whom to appoint as conservator or successor conservator, the court shall consider ... (5) any existing or potential conflicts of interest of the proposed conservator. The plaintiff asserts that the probate court erred in ignoring Rochelle’s conflict of interest as a conservator." The plaintiff asserts that Rochelle, as a potential heir to Bernice’s estate, has a personal interest in determining whether claims should be asserted on behalf of Bernice’s estate.
The court stated that it considered the factors set forth in 45a-650(h). [Dec., p. 2.] Rochelle testified that she was concerned that there would not be adequate funds to support Bernice’s needs as her condition deteriorated and the cost of the care required increased. [Tr., p. 39.] During the hearing, the issue of Rochelle’s possible conflict of interest was presented by counsel. The plaintiff offers this court with no factual support of his assertion that the probate court ignored the factor of conflict of interest in arriving at its decision to appoint Rochelle as conservator.
Rochelle testified that she frequently visits Bernice, helps her with daily living activities, makes purchases for her, takes to her medical appointments, and due to their close geographic proximity, is readily available for emergency medical decisions. [Tr., pp. 36-37.] The probate court found Rochelle to be qualified to serve as conservator of Bernice’s person and of her estate. The court specifically set forth its reasons for finding Rochelle to be qualified to serve as such. [Dec., p. 2.] This court concludes that the probate court’s conclusion that Rochelle is qualified so serve as involuntary conservator is based on credible and competent evidence.
Attorney Bell testified as to the current arrangement (i.e., Attorney Bell serving as voluntary conservator of Herbert’s estate and co-trustee of Herbert’s revocable trust) and as to the appointment of another New Jersey attorney as Bernice’s conservator. Said testimony is competent evidence of alternative options to the appointment of Rochelle as involuntary conservator for Bernice. This court concludes that the probate court’s finding that the appointment of Rochelle as involuntary conservator was the least restrictive means of intervention that could be put into place to adequately manage Bernice’s affairs is based on credible and competent evidence.
CONCLUSION
The court finds that the decision of the Probate Court to appoint Rochelle Linder to be involuntary conservator of Bernice Levetown’s estate and of her person was based upon competent and compelling evidence, the totality of which supports its decision to appoint Rochelle Linder to be conservator of Bernice Levetown’s estate and of her person. As such, the plaintiff is not aggrieved by the probate court decision.
The appeal is dismissed.