Opinion
14-P-167
07-27-2015
ZACHARIAH MANSON & another v. SUSAN HUBBARD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal by two brothers, beneficiaries under two former Massachusetts Uniform Transfer to Minors Act (UTMA) accounts created pursuant to their parents' separation agreement, from the dismissal of their complaint in equity as against Susan Hubbard. As is pertinent to this appeal, Hubbard was appointed as the parenting coordinator pursuant to the separation agreement. However, for reasons not apparent on the record, Hubbard allegedly was also named as the trustee of the trust from which the two UTMA accounts were funded. The essence of the complaint alleged that Hubbard, in her role as "trustee/custodian," breached her fiduciary duty to the brothers by releasing funds belonging to the brothers in trust and terminating the trust without seeking instructions from the Probate and Family Court.
The claims against the other defendants were subsequently resolved and are not the subject of this appeal.
The motion judge dismissed the complaint against Hubbard on the ground that she was entitled to quasi judicial immunity, ruling in part that "[a]ny damages alleged by the [brothers] arising out of Hubbard's actions arise out of her duties as trustee and as a court appointed trustee or in a quasi judicial capacity." As is discussed in more detail below, an examination of the record before us on this motion to dismiss leads us to conclude that there is no support for the judge's finding that Hubbard was a court-appointed trustee. Furthermore, our research has not revealed, and the parties have not cited, any case in which a non-court-appointed trustee would be entitled to judicial immunity. Accordingly, we conclude that at this stage of the proceedings, the dismissal of the complaint on grounds of quasi judicial immunity is not sustainable, and we therefore vacate the judgment.
The judge's dismissal as to Hubbard did not rely on her contention as to the failure to join an indispensable party, Seth Manson. On appeal Hubbard has not raised that argument as an alternative ground for affirming the dismissal. The issue is waived.
In dismissing the complaint as to Hubbard under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), the judge ruled as follows:
"Any damages alleged by the Plaintiffs arising out of Hubbard's actions arise out of her duties as trustee and as a court appointed trustee or in a quasi judicial capacity. The Complaint alleges that Hubbard simply disbursed the trust funds in accordance with the report of the Special Master, and the instructions of the co-Defendants Karen Tesar, Mother of the Plaintiffs, and Robert Peck, Tesar's divorce counsel. . . . The Court finds that the actions of Hubbard as alleged in the Complaint are within the scope of her appointment as trustee. Therefore she is entitled to absolute immunity. Sarkisian v. Benjamin, 62 Mass. App. Ct. 741, [] 746 (2005)."
We note that given the dismissal of the complaint on the ground of judicial immunity, the record in this appeal lacks detail concerning how or when the proceeds from the sale of the martial home were transferred into the two UTMA accounts. The complaint incorporates no financial statements, documentation, or accounting for the accounts. The complaint alleges that Hubbard disbursed the funds to the plaintiffs' parents in an effort to comply with the direction of the special master report, but leaves unclear how the trust funds came into Hubbard's possession or what actions she did or did not take as trustee. Given the limited record, we do not intend to express any view concerning Hubbard's actions as trustee or as custodian of the UTMA accounts.
1. Background. On review of a motion to dismiss, we examine the complaint and assume the truth of its factual allegations. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). To very briefly summarize, the plaintiffs' parents were divorced in 2003 pursuant to a separation agreement. As pertinent here, the agreement provided that the mother was to have sole legal and physical custody of the two children, the father was to have visitation, and the defendant, Hubbard, was appointed the parenting coordinator to mediate visitation disputes. This provision was merged with the divorce judgment, which became absolute in May of 2003.
Another provision of the divorce judgment, "Exhibit F" concerning "Personal Property and Monies," provided for the appointment of a special master for final resolution of the remaining personal property issues; the master's decision would be final and unappealable. That same section also provided for the creation of trust funds for each of the children to help fund their postsecondary education. It provided, "The funds for the children's trust funds (one for each child in equal amounts) shall be deposited and held with an independent bank or trust company an[d] shall be used only to pay for post-secondary education expenses of the children or to pay for unanticipated emergencies." The trusts allegedly were funded in April of 2003 by a fifty percent distribution of a portion of the proceeds from the sale of the marital home provided for in "Exhibit E" of the separation agreement.
There is no explicit provision in the separation agreement for the appointment of a trustee for the funds. At some point in time, allegedly in August of 2003, the proceeds were transferred to two separate UTMA accounts, one for each child.
As noted above, for reasons not apparent on the record, Hubbard was named as trustee of the trust from which the UTMA accounts were created. Four years later, in March, 2007, the special master filed her report with the Probate and Family Court. The report, among other things, directed Hubbard to disburse certain funds held by her to the parents of the children. Hubbard contends she complied with the direction of the special master and disbursed the funds as directed. We note that the special master report directed Hubbard to disburse "escrowed funds." However, from all that appears of record, the funds at issue, or more particularly the funds which Hubbard had authority over, were not escrowed funds, but funds that were held in trust for the children.
In June, 2007, the children were in a car accident in which one person died. One of the children lost both legs in the accident and the other suffered numerous broken bones. Thereafter, the two children (now adults) filed the complaint at issue in this appeal.
2. Discussion. On appeal, the brothers argue that the judge erroneously concluded that Hubbard was a "court appointed" trustee as she was never appointed to that position by the court. The brothers also argue that even court-appointed trustees are not entitled to quasi judicial immunity generally, and specifically are not immune for the misdelivery of funds in the absence of an order from the court with notice to the interested parties.
First, an examination of the record leads us to conclude that there is no support for the judge's finding that Hubbard was a court-appointed trustee. As noted above, there is no provision in the separation agreement for the appointment of a trustee for the funds. There is no court order appointing Hubbard as trustee. Finally, the complaint does not allege that Hubbard was court-appointed. Even if we were beyond the pleadings stage, such a finding would be clearly erroneous on this record. See Robbins v. Robbbins, 19 Mass. App. Ct. 538, 541 (1985).
We conclude that in the circumstances of this case, Hubbard was not shown to be entitled to quasi judicial immunity in her role as trustee. Hubbard was not "conducting any hearing or performing any other judicial function." Commonwealth v. O'Neil, 418 Mass. 760, 767 (1994). Hubbard was not appointed by the court to act as trustee or as custodian of the UTMA accounts and was not providing expert services to the court. Finally, as previously noted, our research has found no Massachusetts case, and the parties have cited none, in which the courts have applied the doctrine of quasi judicial immunity to the actions of a non-court-appointed trustee. We decline to do so in this case.
Judgment of dismissal dated January 25, 2011, vacated.
By the Court (Berry, Vuono & Rubin, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 27, 2015.