Opinion
MMXCV156014026
08-17-2017
Roger Traversa v. Diane A. Nielsen
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Julia L. Aurigemma, J.
The plaintiff, Roger Traversa, has brought a complaint in two counts against the defendant, Diane Nielsen. The first count alleges fraud and seeks a constructive trust and the second count alleges undue influence. After a trial to the court which occurred on July 18 and 19, 2017, the court finds the following facts.
By Memorandum of Decision dated April 5, 2016, this court, Domnarski, J. interpreted the first count to allege fraud and seek a constructive trust as a remedy.
Laura Traversa was the mother of Roger Traversa and Diane Nielsen. Laura had five children: Roger Traversa, Diane Nielsen, Paula Traversa, Amy Traversa and Bruce Traversa. Laura Traversa lived in a house in Harwinton, Connecticut from 1972 until the time of her death on March 5, 2014.
Roger Traversa is an attorney who is admitted to practice law in Pennsylvania. Roger lived with his mother in Harwinton from approximately 2005 until the house was sold thirteen months after Laura's death. Roger never paid his mother any rent. However he represented to the bankruptcy court that he had an agreement that he would pay his mother $1,500 per month in rent at such time as he became employed. It is not clear whether Roger was employed at any time during which he lived with his mother.
Diane Nielsen is the mother of three children and resides in Middletown with her husband, Craig. She has been employed as a part-time reservation agent with American Airlines since 1998. She occasionally helps out with paperwork in her husband's optometry business in Meriden, Connecticut. Diane's children were Laura Traversa's only grandchildren.
In June 2006 Laura consulted an attorney in Torrington, Connecticut for the purpose of estate planning. Thereafter, Laura executed a Last Will and Testament naming Diane Nielsen as the Executrix. Since the plaintiff was an attorney and lived with his mother, she had requested that he serve as her executor, but he declined because " it was disfavored for Pennsylvania attorneys to act as agents for estates where they would significantly benefit; and at the time, [he] was contemplating permanently relocating outside the state of Connecticut and it would have been inconvenient to act as executor remotely." Affidavit of Roger Traversa, 12/11/16, Exhibit J.
Laura Traversa was diagnosed with lung cancer in 2013. When Diane learned about the diagnosis in December 2013 she discussed with her mother various issues regarding the probate of the mother's estate. Diane told her mother that as executrix, she would be responsible for making payments such as real estate taxes and payments for the upkeep of the mother's house until it was sold. Diane had sold Laura a $50,000 life insurance policy in 1986. When Laura was diagnosed with cancer all five of Laura's children were beneficiaries under the insurance policy.
Diane and Laura discussed the use of the $50,000 as a ready amount with which to pay expenses of the estate during probate. Diane told Laura that if she needed to use the insurance proceeds to pay estate expenses, it would be difficult for her to seek contribution from each of her siblings and suggested that she be made the sole beneficiary of the life insurance policy. At the time of this discussion, Laura had completed chemotherapy and was feeling well. Her mental faculties were not impaired in any way. She did not depend upon Diane to assist her with daily living. Roger was doing that.
Laura asked Diane to prepare a change of insurance beneficiary form, which would change the beneficiary on the life insurance policy to Diane only. On December 21, 2013, Diane went to Laura's home in Harwinton with the change of beneficiary form. When Diane arrived, Roger and Paula were in the living room with Laura. When Diane walked into the room, Roger walked out. Diane asked Paula to witness their mother's signature on the change of beneficiary form. Laura then signed the form and Paula witnessed the signature. The change made Diane the primary beneficiary and the Estate of Laura Traversa the secondary beneficiary.
Laura understood that once she named Diane as the sole beneficiary under the insurance policy that the insurance money would belong to Diane. After Laura made Diane the sole beneficiary on the insurance policy, Roger attempted on various occasions to get his mother to change the beneficiaries back to all of her children, but she refused.
Prior to Laura's death Diane and Laura also discussed the disposition of Laura's automobile, a 2009 Honda Accord. Diane was the only one of Laura's children who had children and at least two of those children were able to drive, but did not have cars. Diane told Laura that she could use the 2009 Honda Accord and offered to buy it from Laura. Laura was insistent that she preferred to gift the car to Diane than to sell it to her and that is what Laura did.
Laura Traversa passed away on March 5, 2014. Diane Nielsen was appointed executrix of Laura's estate on March 21, 2014. The only probate assets in the estate of Laura Traversa were Laura's real property in Harwinton and a small payment from the State of Connecticut for a total value of $275,583.69.
Diane sold Laura's Harwinton house and real property approximately thirteen months after Laura died. Roger lived in the house rent-free for that period. Diane could have, but did not, request that Roger pay rent to the estate and could have, but did not, deduct the fair rental value of the house from Roger's portion of the probate estate distribution.
Diane filed a final Financial Statement for the estate with the probate court on April 30, 2015. The probate court accepted and approved the Financial Statement on June 24, 2015 and ordered distribution pursuant to the Statement. There were no appeals from the probate court's order.
After her mother's death, Diane kept her siblings advised about the assets of the estate, the non-probate assets and her expenditures. She did this by sending letters and e-mails. Diane advised her siblings that she was the beneficiary of the following: life insurance policy which had a death benefit of $50,049.32; deferred compensation plan with Met Life with a death benefit of $23,948.14; and accumulated interest on State of Connecticut retirement fund in the amount of $1,680.75.
Diane gave her siblings Paula Traversa and Bruce Traversa checks in the total amount of $19,175 each. That amount was slightly higher than one-fifth of the total non-probate assets.
When Laura died, she had a bank account with Roger. That account had a balance of approximately $10,000. Roger admitted that the money in this account came from his mother. After his mother died, Roger did not share the $10,000 with his siblings, but kept it for himself. In addition, Roger owed the estate money for his fuel and other living expenses after Laura died. Diane deducted the $10,000 and the amount of the expenses and offered Roger a check for $7,135, which would have resulted in his receiving one-fifth of the non-probate assets. Roger did not accept the check and, instead, brought this lawsuit in which he claims that he is entitled to a full 1/5 share of the non-probate assets.
The defendant argues that the plaintiff has failed to prove fraud or undue influence. The plaintiff must prove fraud by clear and convincing evidence. Dockter v. Slowik, 91 Conn.App. 448, 453-54, 881 A.2d 479, cert. denied, 276 Conn. 919, 888 A.2d 87 (2005). However, if the plaintiff establishes a confidential or fiduciary relationship, then the defendant must prove that there was no undue influence. Cadle Company v. D'Addario, 268 Conn. 441, 455, 844 A.2d 836 (2004).
Under Connecticut law the relationship between a parent and a child does not per se give rise to a fiduciary relationship. Cooper v. Cavallaro, 2 Conn.App. 622, 626, 481 A.2d 101 (1984). The defendant did not share any closer relationship with her mother than did her siblings. The plaintiff's relationship with his mother bore more indices of a confidential relationship than did the defendant's. The plaintiff testified that he managed his mother's medical appointments, drove her to those appointments and elsewhere and commented on her estate planning. Moreover, the plaintiff was a licensed attorney.
The plaintiff has claimed that the defendant's past position as an insurance agent, her position as her mother's executrix and her position as a part-time office manager of her husband's office establish a confidential relationship. The defendant had been an insurance agent for six years from 1985 through 1991, but was not an insurance agent 22 years later in 2013. The defendant was not the executrix of the estate in 2013 when the gifting of Laura's automobile occurred and the change of beneficiary form was signed because Laura was still alive. Finally, the defendant's part-time office management activities for her husband did not create a confidential relationship between her and her mother. The plaintiff has failed to prove any confidential relationship between Diane Nielsen and Laura Traversa.
Count One is entitled " Constructive Trust." However, this court, Domnarski, J., has interpreted it to state a claim for fraud. " Fraud involves deception practiced in order to induce another to act to her detriment, and which causes that detrimental action . . . The four essential elements of fraud are 1) that a false representation of fact was made; 2) that the party making the representation knew it to be false; 3) that the representation was made to induce action by the other party; and 4) that the other party did so act to her detriment." Chase Manhattan Mortgage Corp v. Machado, 83 Conn.App. 183, 188, 850 A.2d 260, 264 (2004). The elements of fraud must be proved by clear and convincing evidence. Dockter v. Slowik, 91 Conn.App. 448, 453-54, 881 A.2d 479, cert. denied, 276 Conn. 919, 888 A.2d 87 (2005).
The plaintiff claims that the defendant told her mother that the purpose of the change in beneficiary on the life insurance was to save taxes. The court has not found this to be true. Moreover, whatever the representations made, they were made to Laura and not to the plaintiff. The plaintiff did not act to his detriment based on any representations and, therefore, was not defrauded.
The imposition of a constructive trust requires the finding that a confidential relationship existed at the time of the allegedly improper transfer of property. Gulack v. Gulack, 30 Conn.App. 305, 312, 620 A.2d 181 (1993). As stated above, the plaintiff has failed to prove the existence of a confidential relationship between Diane Nielsen and Laura Traversa.
The plaintiff also argues that the defendant defrauded him because she promised to share non-probate assets equally and did not. However, such argument is factually incorrect and legally inactionable. The court has found that Diane offered Roger an amount that would have given him one-fifth of the non-probate estate after his retention of S10, 000 from his mother's bank account and an offset of amounts he owed in connection with his residence at the mother's house. Thus, Diane did attempt to share the non probate assets equally with Roger. Moreover, if Diane had promised to share probate assets equally, and then failed to do so, that promise would be unenforceable as the promise to make a future gift. Thoma v. Oxford Performance Materials, Inc., 153 Conn.App. 50, 55-56, 100 A.3d 917 (2014).
Count Two of the complaint alleges undue influence. Connecticut law provides that " Undue influence is the exercise of sufficient control over a person, whose acts are brought into question, in an attempt to destroy his free agency and constrain him to do something other than he would do under normal control . . . It is stated generally that there are four elements of undue influence: (1) a person who is subject to influence; (2) an opportunity to exert undue influence; (3) a disposition to exert undue influence; and (4) a result indicating undue influence." (Citation omitted; internal quotation marks omitted.) Pickman v. Pickman, 6 Conn.App. 271, 275, 505 A.2d 4 (1986).
The evidence was that Laura Traversa was a strong-willed woman, who refused to change the beneficiary on her life insurance form notwithstanding the plaintiff's efforts to persuade her to do so. Although Laura was ill at the time she signed the change of beneficiary form in favor of the defendant, there was no evidence that she did not understand what she was doing, or that she was so dependent upon the defendant that her free will was compromised.
Contrary to the plaintiff's argument, the defendant did not trick her mother into changing the beneficiary form. Laura Traversa understood why it made sense for the defendant to have sole ownership of the life insurance proceeds and understood that those proceeds would be solely owned by the defendant. As stated above, Roger Traversa had much more control over his mother than did Diane Nielsen. He lived with her. He was an attorney. He attempted to persuade her to change the beneficiary form, no doubt warning her that without a change, Diane would be the sole owner of the insurance monies. The plaintiff has failed to prove that allegations of Count Two for Undue Influence.
Judgment enters on both counts in favor of the defendant, Diane Nielsen.