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*********************************************** 
IN RE PROBATE APPEAL OF DOUGLAS MCINTYRE

(AC 43751)

Bright, C. J., and Alvord and Pellegrino, Js.

Syllabus

The plaintiff, individually and as custodian of an account created for the

benefit of his son, D, pursuant to the Connecticut Uniform Transfers

to Minors Act (§ 45a-557 et seq.), appealed to the trial court from the

decree of the Probate Court removing him as the custodian of the

account and naming the defendant, the plaintiff’s former wife and D’s

mother, as the successor custodian. Prior to the dissolution of the parties’

marriage, the plaintiff withdrew funds from D’s UTMA account and

deposited them into a transfer on death account, which the plaintiff

owned and which named D as the primary beneficiary. The plaintiff

also withdrew funds from a UTMA account naming another one of the

parties’ sons, R, as the beneficiary and, with those funds and certain

other funds that he contributed, established two additional transfer on

death accounts, which the plaintiff owned and which named R and the

parties’ third son, respectively, as beneficiaries. Acting on the advice of

counsel, the plaintiff thereafter withdrew funds from each of the transfer

on death accounts to pay personal legal expenses relating to the parties’

postdissolution proceedings. The defendant filed a petition in Probate

Court requesting that the funds the plaintiff removed from D’s UTMA

account be restored, that the plaintiff be removed as the custodian of

the account, and that the defendant be appointed as the successor

custodian. The Probate Court decreed that the plaintiff be removed as

the custodian of the account and that the defendant be named as the

successor custodian. The defendant also filed a separate petition with

respect to R’s UTMA account and the Probate Court rendered a similar

decree. The plaintiff appealed to the trial court only from the decree

relating to D’s UTMA account. The trial court affirmed the decree of

the Probate Court to remove the plaintiff as custodian of D’s UTMA

account and further ordered that the defendant should continue as the

successor custodian for the accounts benefitting all three of the parties’

children. On the plaintiff’s appeal to this court, held:

1. The trial court lacked subject matter jurisdiction to make its orders

relating to the custodial arrangements for the UTMA accounts that were

created for the benefit of R and the parties’ third son: because the

plaintiff appealed to the trial court only from the decree of the Probate

Court that related to D’s UTMA account, in determining that the plaintiff

be removed as custodian and that the defendant be allowed to continue

as custodian for the UTMA accounts for the benefit of the parties’ other

two children, the trial court considered issues that were beyond the

scope of the decree of the Probate Court from which the plaintiff

appealed.

2. The trial court improperly placed the burden of proof on the plaintiff to

demonstrate that his removal as custodian was not warranted: pursuant

to Cadle Co. v. D’Addario (268 Conn. 441), the burden was on the

party seeking removal to establish that removal was required to prevent

continuing harm to the interests of the beneficiary, and the trial court’s

attempt to distinguish the present case from Cadle Co. was improper

because D, as the beneficiary of the UTMA account, was in a position

similar to the beneficiaries in Cadle Co., in that he did not have the

right to dictate the identity of the custodian, and the fact that he was

in a position dissimilar to that of the decedent in Cadle Co., who was

able to select the custodian, was irrelevant; moreover, the defendant’s

claim that the trial court determined that she had met her burden and

that the plaintiff failed to produce evidence to refute that which she

had produced was unavailing, as the argument was contrary to the trial

court’s decision, which did not address the defendant’s burden of proof;

furthermore, it was not clear that the trial court’s application of the

incorrect burden of proof was harmless, as its focus in determining that

removal was required was almost entirely on the plaintiff’s past breach

of fiduciary duty and, therefore, it was not clear that the trial court
would have reached the same decision if it had applied the burden of

proof correctly.

Argued April 20—officially released September 14, 2021

Procedural History

Appeal from the decree of the Probate Court for

the district of Northern Fairfield County removing the

plaintiff Ian McIntyre as the custodian of an account

created for the benefit of his minor son pursuant to the

Connecticut Uniform Transfers to Minors Act, brought

to the Superior Court in the judicial district of Danbury

and tried to the court, D’Andrea, J.; judgment affirming

the Probate Court’s decree, from which the plaintiff

appealed to this court. Reversed; further proceedings.

Andrew S. Knott, with whom, on the brief, was Robert

J. Santoro, for the appellant (plaintiff).

Vincent N. Amendola, Jr., for the appellee (defendant

Janine Carbonaro).
Opinion

BRIGHT, C. J. The plaintiff, Ian McIntyre, individually

and as the custodian of an account created pursuant

to the Connecticut Uniform Transfers to Minors Act

(UTMA), General Statutes § 45a-557 et seq.1

for the benefit of his son, Douglas McIntyre, appeals from the

judgment of the Superior Court denying his appeal from

a decree of the Probate Court removing him as the

custodian of the account and naming the defendant2

Janine Carbonaro as the successor custodian. On

appeal, the plaintiff claims that the Superior Court (1)

lacked subject matter jurisdiction to make certain

orders and (2) improperly placed the burden of proof

on him to prove that his removal as custodian was not

warranted.3 We agree with both claims.

The following facts, as found by the Superior Court,

and procedural history are relevant to our resolution

of this appeal. The parties were divorced in 2013, and

have three children. The plaintiff was the custodian of

a UTMA account that named the parties’ middle child,

Douglas McIntyre, as the beneficiary (account). In

March, 2010, prior to the dissolution of the parties’

marriage, the plaintiff withdrew funds totaling

$16,424.76 from the account and deposited those funds

into a transfer on death account,4 which the plaintiff

owned and which named Douglas McIntyre as the primary beneficiary. The plaintiff also withdrew funds

from the UTMA account of the parties’ eldest child,

Rolt McIntyre. With these funds and additional funds

that he contributed, the plaintiff opened two additional

transfer on death accounts, each of which named as

the beneficiary, respectively, one of the parties’

remaining two children.

The plaintiff, acting on the advice of his counsel,

thereafter withdrew a total of $22,928 from the transfer

on death accounts, $7463 of which was withdrawn from

Douglas McIntyre’s transfer on death account, to pay

personal legal expenses relating to postdissolution proceedings that had been initiated by the defendant. Pursuant to General Statutes § 45a-557b (a),5

the defendant

filed a petition in the Probate Court, requesting that the

funds that the plaintiff had removed from the account

be restored, that the plaintiff be removed as custodian

of the account, and that she be appointed as the successor custodian.6 She also filed a petition in the Probate

Court seeking similar relief as to the parties’ eldest

child, Rolt McIntyre. Following the filing of those petitions, the plaintiff returned to Douglas McIntyre’s

UTMA account the funds he had withdrawn to fund

Douglas McIntyre’s transfer on death account. On October 12, 2017, the Probate Court decreed that the plaintiff

be removed as the custodian of the account and that

the defendant be named as the successor custodian. The

Probate Court rendered a similar decree with regard

to the account for Rolt McIntyre.
The plaintiff appealed to the Superior Court pursuant

to General Statutes § 45a-1867

from the decree of the

Probate Court with respect to Douglas McIntyre only.

He claimed that (1) he did not mismanage the assets,

(2) he should not be removed as the custodian of the

account, and (3) even if he were removed, then the

successor custodian should be the individual whom

he had designated, even though he did not make that

designation until after the Probate Court rendered its

decree. The Superior Court, D’Andrea, J., affirmed the

decree of the Probate Court to remove the plaintiff as

the custodian of the account and determined that the

defendant should continue as the successor custodian

‘‘under the UTMA for the three children . . . .’’ This

appeal followed. Additional facts will be set forth as

necessary.

I

The plaintiff first claims that, because he had

appealed to the Superior Court from the decree of the

Probate Court with respect to the account of Douglas

McIntyre only, the Superior Court lacked subject matter

jurisdiction with respect to the custodial arrangement

for the UTMA accounts of the parties’ remaining two

children. The defendant agrees that the Superior Court

only had subject matter jurisdiction to consider the

plaintiff’s removal and her appointment as the successor custodian of Douglas McIntyre’s UTMA account.

We agree.

The plaintiff’s claim, which raises the issue of subject

matter jurisdiction for the first time on appeal, is reviewable. See Premier Capital, LLC v. Shaw, 189 Conn.

App. 1, 5, 206 A.3d 237 (2019) (‘‘subject matter jurisdiction may be raised at any time during the proceedings

. . . including on appeal’’ (internal quotation marks

omitted)). ‘‘We have long held that because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary. . . .

Subject matter jurisdiction involves the authority of the

court to adjudicate the type of controversy presented

by the action before it. . . . [A] judgment rendered

without subject matter jurisdiction is void.’’ (Citation

omitted; internal quotation marks omitted.) Labissoniere v. Gaylord Hospital, Inc., 199 Conn. App. 265,

275–76, 235 A.3d 589, cert. denied, 335 Conn. 968, 240

A.3d 284 (2020), and cert. denied, 335 Conn. 968, 240

A.3d 285 (2020).

Notwithstanding the fact that the plaintiff appealed

from the decree of the Probate Court only as to Douglas

McIntyre, the Superior Court concluded that the plaintiff be removed as custodian and the defendant ‘‘be

allowed to continue as custodian under the UTMA for

the three children . . . .’’ (Emphasis added.) In so concluding, the Superior Court considered issues beyond

the scope of the decree of the Probate Court from which
the plaintiff had appealed. ‘‘[A] probate appeal . . .

brings to the Superior Court only the order appealed

from. The order remains intact until modified by a judgment of the Superior Court after a hearing de novo on

the issues presented for review by the reasons of appeal.

. . . The Superior Court may not consider or adjudicate

issues beyond the scope of those proper for determination by the order or decree attacked. . . . The Superior

Court, therefore, cannot enlarge the scope of the

appeal.’’ (Emphasis added; internal quotation marks

omitted.) Marshall v. Marshall, 71 Conn. App. 565, 569–

70, 803 A.2d 919, cert. denied, 261 Conn. 941, 808 A.2d

1132 (2002).

Accordingly, the Superior Court had subject matter

jurisdiction only over the matter of the Probate Court

with respect to Douglas McIntyre because that was the

only matter from which the plaintiff had appealed. The

Superior Court did not have jurisdiction to determine

the custodian of any existing UTMA accounts of the

parties’ remaining two children because there was no

appeal before the Superior Court concerning any UTMA

accounts of those children.8 Consequently, the judgment of the Superior Court as to those accounts is

reversed.

II

The plaintiff next claims that the Superior Court

improperly placed the burden of proof on him, rather

than on the defendant who sought his removal as the

custodian of the account. He contends that in doing so

the Superior Court improperly failed to follow the precedent of our Supreme Court in Cadle Co. v. D’Addario,

268 Conn. 441, 844 A.2d 836 (2004) (Cadle). We agree.

‘‘When a party contests the burden of proof applied

by the trial court, the standard of review is de novo

because the matter is a question of law.’’ Id., 455.

Our analysis is controlled by the decision of our

Supreme Court in Cadle. In that case, the plaintiff, an

unsecured creditor of the estate of the decedent,

appealed to the Superior Court from the denial by the

Probate Court of its motion for an order seeking, inter

alia, the removal of both coexecutors of the decedent’s

estate. Id., 442–43. On appeal, the plaintiff creditor

claimed that the trial court improperly had placed the

burden of proof on it to show why removal of the

coexecutors was warranted. Id., 449. Our Supreme

Court examined whether the following common-law

burden shifting scheme was applicable: ‘‘Generally . . .

when a breach of fiduciary duty is alleged, and the

allegations concern fraud, self-dealing or a conflict of

interest, the burden of proof shifts to the fiduciary to

prove fair dealing by clear and convincing evidence.’’

Id., 457. After citing General Statutes § 45a-242,9 which

concerns the removal of fiduciaries by the Probate

Court, our Supreme Court explained: ‘‘Our case law
recognizes that [r]emoval of an executor is an extraordinary remedy designed to protect against harm caused

by the continuing depletion or mismanagement of an

estate. . . . In the absence of continuing harm to the

interests of the estate and its beneficiaries, removal is

not justified merely as a punishment for a fiduciary’s

past misconduct.’’ (Internal quotation marks omitted.) Id.

In considering the issue of first impression, our

Supreme Court noted that ‘‘it is useful to examine the

policies underlying the apparently conflicting rules that:

(1) the burden of proof is ordinarily shifted to the fiduciary when breach of fiduciary duty is alleged; and (2)

removal of an estate’s fiduciary will not be ordered

except in extraordinary cases to avoid continuing harm

to the interests of the estate. Underlying the former

rule is the recognition that the fiduciary’s principal has

voluntarily placed a unique degree of trust and confidence [in the fiduciary, who] has superior knowledge,

skill or expertise that is to be exercised on behalf of

the principal. . . . Accordingly, when the fiduciary has

a dominant and controlling force or influence over his

principal, or the transaction at issue, the burden shifts

to the fiduciary to prove the fairness, honesty and integrity in the transaction . . . . In contrast, underlying

the rule that removal is an extraordinary remedy to be

applied sparingly is the recognition that the decedent

has specifically chosen the fiduciary for the specific

purpose of administering his estate and managing the

claims of persons with conflicting interests in the

estate.’’ (Citations omitted; internal quotation marks

omitted.) Id., 459–60.

Our Supreme Court reasoned that, ‘‘although the

decedent has voluntarily entrusted the management of

his estate into the hands of the executor because of

his expertise, knowledge or skill, the creditor has not

voluntarily entrusted the executor with managing its

claim. Thus, the executor’s primary duty is to the estate

itself, and to fulfilling the intentions of the decedent

with respect to the estate. Only secondarily is the executor’s duty to those with conflicting interests in the

estate, vis-a`-vis the decedent, with whom, nevertheless,

the fiduciary is obligated to deal fairly. Thus, although

we have recognized that the executor of an estate has

a fiduciary duty to its creditors . . . that duty does not

rise to the level of the duty owed by a fiduciary to a

principal who voluntarily has placed his confidence and

trust in the fiduciary for a specific purpose.’’ (Citation

omitted.) Id., 460–61. The court concluded that ‘‘the

burden shifting that ordinarily is employed when a

plaintiff has alleged a breach of fiduciary duty does not

apply in removal proceedings. Instead, the burden is

on the party seeking removal to establish that removal

is required to prevent continuing harm to the interests

of the estate.’’ Id., 461.
In the present case, the Superior Court determined:

‘‘After review of all the pleadings, live witness testimony, submitted exhibits, and parties’ posttrial memoranda, it is, therefore, the decision of this court that

the plaintiff/appellant has not maintained his burden of

proof on this appeal, therefore, the [Probate Court’s]

decision to remove him as custodian under the UTMA

is affirmed . . . .’’ The Superior Court reached this conclusion despite the clear holding in Cadle that the burden of proof rests on the party seeking removal. Cadle

Co. v. D’Addario, supra, 268 Conn. 461; see also In re

Probate Appeal of Cadle Co., 152 Conn. App. 427, 442–

43, 100 A.3d 30 (2014). The Superior Court placed the

burden of proof on the plaintiff apparently because it

concluded that ‘‘Cadle is factually so different, as to

make it inapplicable.’’

In particular, the Superior Court stated that ‘‘Cadle

involved the removal of the executor, handpicked by

the decedent, to control his estate, a decision showing

the decedent’s faith in the selection of executor. That

is a significant difference than what occurred here. Not

only did [Douglas McIntyre] in 2010 not personally

select the plaintiff . . . [he] most certainly had no

knowledge of even the existence of [the UTMA

account]. [His] wishes, unlike that of [the] decedent in

Cadle, could not have been involved in the selection of

the plaintiff . . . [as the custodian].’’ The plaintiff

argues that the Superior Court improperly ‘‘attempts to

distinguish Cadle . . . by arguing that [the beneficiary

of the account] did not choose the plaintiff to be his

UTMA custodian; therefore, the plaintiff should not be

entitled to any special protection of the high burden of

removing a fiduciary.’’ We agree that the Superior Court

improperly distinguished Cadle.

The fact that the beneficiary of the UTMA account

is in a position dissimilar to that of the decedent in Cadle

because the beneficiary did not create the account or

voluntarily select the custodian is irrelevant. Douglas

McIntyre’s interest in the UTMA account is akin to that

of the beneficiaries of the estate in Cadle. Like the

beneficiary of a UTMA account, the beneficiaries of an

estate do not have a right to dictate who the fiduciary

is. That decision is left to the decedent of the estate or

the person who funds the UTMA account. In the present

case, it was decided when the account was created that

the plaintiff would be the custodian.10 The plaintiff, as

the person who established the account, is in a position

similar to that of the decedent testator in Cadle. In both

situations, the person creating the corpus that would

ultimately benefit others chose a person they trusted

to manage those funds. By choosing to create a UTMA

account for Douglas McIntyre, as to which he was the

custodian, as opposed to some other vehicle such as a

trust managed by a third party, the plaintiff, as transferor, voluntarily chose to subject the account he and
his family members funded to the requirements of the

UTMA, including those pertaining to the obligations of

and the removal of the custodian. See General Statutes

§ 45a-557 et seq. It follows, then, that the transferor

selects the custodian for the specific purpose of fulfilling the requirements of the UTMA, the goal of which

is to preserve the property of the minor beneficiary.

See Mangiante v. Niemiec, 82 Conn. App. 277, 282,

843 A.2d 656 (2004) (discussing goal of UTMA). The

custodian does not owe an obligation to an individual

in his or her capacity as a party seeking removal11 that

is higher than the duty that the custodian has to abide

by under UTMA and, thereby, has to the minor beneficiary. See id., 282–83 (custodian of UTMA account owes

fiduciary duty to beneficiary). Therefore, placing the

burden of proof on the party who seeks the removal

of the custodian of a UTMA account is consistent with

the rule that removal is an extraordinary remedy.

Accordingly, we conclude that the Superior Court

improperly placed the burden of proof on the plaintiff

custodian. See Cadle Co. v. D’Addario, supra, 268 Conn.

461 (party seeking removal has burden to establish that

removal is required); see also In re Taylor’s Estate, 5

Ariz. App. 144, 147, 424 P.2d 186 (1967) (party seeking

removal of trustee has burden of proof); Matter of Rose

BB., 243 App. Div. 2d 999, 1000, 663 N.Y.S.2d 415 (1997)

(same); Tomazic v. Rapoport, 977 N.E.2d 1068, 1074

(Ohio App. 2012) (same), review denied, 134 Ohio St.

3d 1485, 984 N.E.2d 29 (2013); Guerra v. Alexander,

Docket No. 04-09-00004-CV, 2010 WL 2103203, *6 (Tex.

App. May 26, 2010) (same), review denied, Texas

Supreme Court, Docket No. 10-0982 (October 21, 2011);

1 Restatement (Third), Trusts § 1, comment (a), p. 6

(2003) (referring to minors’ custodianships as virtual

trusts). Contrary to the Superior Court’s conclusion,

the plaintiff had no burden of proof to maintain.

Significantly, the defendant does not dispute this conclusion. She concedes on appeal that it was her burden

to prove that the plaintiff should be removed as the

custodian of the account. She argues that she met her

burden and that the court’s findings make that clear.

In particular, the defendant points to the court’s findings that the plaintiff’s withdrawal of funds from the

account in 2010, his personal use of the funds for years,

and his failure to return the funds until ordered to do

so by the Probate Court ‘‘can be described in [no] other

way than self-serving, intentional acts that ‘[waste] the

estate in such fiduciary’s charge.’ Any other interpretation strains logic and credulity. Based on this ground

alone, the Probate Court was justified in removing the

[plaintiff] as custodian of the [account].’’ The Superior

Court also described the plaintiff’s conduct as ‘‘selfserving intentional acts that display a persistent failure

to administer the estate effectively.’’ The court also

stated that removal as the custodian of the account was

not ‘‘ ‘punishment for a fiduciary’s past misconduct’
because the conduct never ended, and would not have

ended, until it was terminated involuntarily by the [Probate Court’s] order.’’ In addition, the Superior Court

held: ‘‘Even assuming, arguendo, that Cadle is applicable, the criteria to approve removal of a fiduciary to

protect against harm caused by the continuing depletion

or mismanagement of an estate is clearly satisfied. [The

plaintiff], for seven and one-half years, until discovered,

brought to the [Probate Court], and then stopped only

by an order of the [Probate Court], had unfettered

access to the funds in his name, to use however he

chose, and after showing that he had no hesitancy in

using the same for his own benefit. The only logical

conclusion that can be reached is that removal was

required. Any other interpretation strains logic and credulity. Therefore, Cadle is not controlling [on] this matter.’’ (Internal quotation marks omitted.)

The defendant argues that, read as a whole, the

court’s memorandum of decision makes clear that the

court concluded that the defendant met her burden to

prove that removal of the plaintiff as custodian was

warranted. She argues that the court’s statement that

the plaintiff ‘‘has not maintained his burden of proof

on this appeal’’ meant that ‘‘the plaintiff did not meet

his burden of proof when he failed to produce evidence

to refute or rebut that of the [defendant].’’ She, therefore, concludes that ‘‘[t]here are no grounds to support

the claim that the court shifted the burden of proof

upon the plaintiff in this case.’’ We are not persuaded.

First, we disagree with the defendant that the court’s

conclusion that the plaintiff failed to maintain his burden of proof reasonably can be read to mean only that

the plaintiff failed to produce evidence to rebut the

defendant’s evidence. That is not what the court said.

Furthermore, the court, in its memorandum of decision,

never mentioned that the defendant bore or met any

burden of proof. Finally, the Superior Court took great

pains to distinguish the present case from Cadle. Given

that the key holding at issue in Cadle, as it relates to

the present case, is who bore the burden of proof, we

conclude that the Superior Court, in holding that Cadle

was inapplicable and not controlling, decided that, on

the basis of the facts of the present case, the plaintiff

bore the burden of proof.

Second, we are not convinced that the court’s application of an incorrect burden of proof was harmless. See

Papallo v. Lefebvre, 172 Conn. App. 746, 756, 161 A.3d

603 (2017) (applying harmless error analysis to incorrect assignment of burden of proof in breach of fiduciary duty case). There is no dispute in the present case

that the plaintiff breached his fiduciary duty to Douglas

McIntyre when he removed funds from the account and

used them for his personal legal expenses. The question

for the court then was whether the defendant proved

that the extraordinary remedy of removal was required
‘‘to protect against harm caused by the continuing

depletion or mismanagement of an estate. . . . In the

absence of continuing harm to the interests of the estate

and its beneficiaries, removal is not justified merely

as a punishment for a fiduciary’s past misconduct.’’

(Emphasis added; internal quotation marks omitted.)

Cadle Co. v. D’Addario, supra, 268 Conn. 457. The Superior Court’s focus in determining that removal was

required was almost entirely on the plaintiff’s past

breach of fiduciary duty. The court did not discuss the

significance of its factual finding that the plaintiff used

funds from the account for his personal legal expenses

based on the advice of his counsel. The court also did

not discuss whether the plaintiff had properly managed

the account in all other respects. Nor did the court

discuss the evidence establishing that the defendant

was aware of and consented to the withdrawal from

the account while the parties were still married or that

the plaintiff made the withdrawal based on the advice

of his financial advisor.12 Finally, there was evidence

that the plaintiff returned to the account all funds he

had previously withdrawn.

By referencing these facts and evidence, we do not

mean to suggest that the plaintiff’s breach of fiduciary

duty was not significant or egregious. Rather, we are

not persuaded that the Superior Court would have

reached the same conclusion had it applied the burden

of proof correctly. Given that removal is an extraordinary remedy and in light of the countervailing evidence

submitted by plaintiff, ‘‘[t]he court’s error was simply

of such a fundamental nature that the only proper remedy is to reverse the judgment . . . and remand the

case for a new trial . . . .’’ Papallo v. Lefebvre, supra,

172 Conn. App. 756.

The judgment is reversed and the case is remanded

to the Superior Court for further proceedings consistent

with this opinion.

In this opinion the other judges concurred.

1 The UTMA provides for the transfer of multiple types of property to be

managed by a custodian, whom the transferor may designate, for the benefit

of the minor until the minor attains twenty-one years of age. See General

Statutes §§ 45a-557 though 45a-560b. ‘‘[T]he overriding goal of the [UTMA]

is to preserve the property of the minor who, due to her age, [is] unable to

protect her interests fully. To further that goal, the legislature granted the

custodian control over the property of the minor and placed the custodian

under a specific duty to act for the benefit of that minor.’’ Mangiante v.

Niemiec, 82 Conn. App. 277, 282, 843 A.2d 656 (2004).

2 Douglas McIntyre also was named as a defendant, but he did not participate in this appeal. We therefore refer to Janine Carbonaro as the defendant.

3 The plaintiff also claims that the Superior Court improperly failed to

appoint as the successor custodian the individual whom he had designated

as such. We do not review this claim because it is unclear whether the

Superior Court will reach this issue on remand, and we will not speculate

on how the issue will be addressed if it is reached.

The plaintiff further claims that the Superior Court failed to apply a de

novo standard of review to his claims. Both parties agree and we recognize

that a de novo standard is the proper standard of review to be applied by

a Superior Court when reviewing an order or decree of the Probate Court.

See Kerin v. Stangle, 209 Conn. 260, 264, 550 A.2d 1069 (1988) (‘‘[t]he

function of the Superior Court in appeals from a Probate Court is to take

jurisdiction of the order or decree appealed from and to try that issue de
novo’’). Because we are reversing and remanding the matter for a new trial,

we need not address the issue of whether the Superior Court had applied

a de novo standard of review in its memorandum of decision in the present case.

4 Unlike a UTMA account wherein the custodial property is indefeasibly

vested in the minor following a valid transfer of custodian property; General

Statutes § 45a-558h; and wherein the custodian of the UTMA account takes

control of the custodian property and manages it for the benefit of the

minor; see General Statutes § 45a-558i; the property in a transfer on death

account passes to the beneficiary on the death of the account holder. See R.

Folsom & L. Beck, Revocable Trusts and Trust Administration in Connecticut

(2021) § 9.7 p. 110.

5 General Statutes § 45a-557b (a) provides in relevant part: ‘‘Courts of

probate in any district in which the transferor, the minor or the custodian

is resident, or in which the custodial property is located shall have jurisdiction of any disputes or matters involving custodianship under sections 45a557 to 45a-560b, inclusive. . . .’’

6 Prior to filing her petition in the Probate Court, the defendant, in the

dissolution action between the parties, sought to open the judgment of

dissolution on the basis of the alleged failure of the plaintiff to disclose on

his financial affidavit three custodial accounts, each of which were held in

the name of one of the parties’ three children and the plaintiff. See McIntyre

v. McIntyre, Superior Court, judicial district of Ansonia-Milford, Docket No.

FA-11-4014913-S (May 2, 2017). The defendant sought to manage the

accounts and to have the plaintiff replenish to the accounts the funds that

he had removed and used for litigation expenses. Id. In its May, 2017 decision

denying the motion to open, the trial court, Grossman, J., determined that

each party ‘‘took every opportunity to criticize the other’’ and that ‘‘their

testimony is not reliable or credible.’’ Id. The defendant thereafter filed an

appeal from the dissolution court’s denial of her motion to open. McIntyre

v. McIntyre, Connecticut Appellate Court, Docket No. AC 40454 (appeal

filed May 18, 2017). In her preliminary statement of issues in that appeal,

the defendant contended, inter alia, that the dissolution court erred in

determining that she had not proven that the plaintiff’s failure to disclose

on his financial affidavit the existence of the three transfer on death accounts

that he had owned at the time of dissolution was fraudulent and that she

had not proven fraud despite the fact that the plaintiff had liquidated the

UTMA accounts and placed the funds into transfer on death accounts.

During the pendency of her appeal in the dissolution matter, the defendant

filed the petitions in the Probate Court regarding the plaintiff’s actions

as to Douglas’ and Rolt McIntyre’s accounts. In the present appeal, the

defendant’s counsel stated at oral argument before this court that he did

not bring to the attention of the Probate Court the dissolution court’s denial

of the motion to open. In her motion to extend time to file her appellate

brief in her appeal from the judgment of the dissolution court denying her

motion to open, the defendant stated that if the Probate Court were to

determine that she had proven her UTMA claims, then her appeal from the

dissolution court’s denial of her motion to open would be rendered moot.

Following the October 12, 2017 decree of the Probate Court naming the

defendant as the successor custodian of the account, the defendant withdrew

her appeal on December 7, 2017, from the judgment of the dissolution court

denying her motion to open.

The timing and sequence of the events described in the preceding paragraphs raise the specter that the defendant has engaged in forum shopping

by seeking a second bite of the apple before the Probate Court because

she was dissatisfied with the judgment of Judge Grossman finding her not

credible and denying her motion to open. Our courts have long discouraged

the practice of forum shopping. See, e.g., Kleen Energy Systems, LLC v.

Commissioner of Energy & Environmental Protection, 319 Conn. 367, 393

n.25, 125 A.3d 905 (2015) (forum shopping results in waste of judicial

resources).

7 General Statutes § 45a-186 (b) provides in relevant part that ‘‘[a]ny person

aggrieved by an order, denial or decree of a Probate Court may appeal

therefrom to the Superior Court. . . .’’

8

In fact, no UTMA account for the parties’ youngest son was ever the

subject of a petition in the Probate Court.

9 General Statutes § 45a-242 provides in relevant part: ‘‘(a) The Probate

Court having jurisdiction may, upon its own motion or upon the petition of

any person interested or of the surety upon the fiduciary’s probate bond,

after notice and hearing, remove any fiduciary if: (1) The fiduciary becomes

incapable of executing such fiduciary’s trust, neglects to perform the duties

of such fiduciary’s trust, wastes the estate in such fiduciary’s charge, or
fails to furnish any additional or substitute probate bond ordered by the

court, (2) lack of cooperation among cofiduciaries substantially impairs

the administration of the estate, (3) because of unfitness, unwillingness or

persistent failure of the fiduciary to administer the estate effectively, the

court determines that removal of the fiduciary best serves the interests of

the beneficiaries, or (4) there has been a substantial change of circumstances

or removal is requested by all of the beneficiaries, the court finds that

removal of the fiduciary best serves the interests of all the beneficiaries

and is not inconsistent with a material purpose of the governing instrument

and a suitable cofiduciary or successor fiduciary is available. . . .’’

10 The court heard conflicting evidence regarding how the account was

funded. The plaintiff testified that the money with which he started the

account came from his grandparents and that the ‘‘vast majority’’ of the

money in the account came from his family. The defendant testified that

her parents may have contributed to the account but expressed a lack of

certainty due to the passage of time. She also testified, referring to her and

the plaintiff, that ‘‘we’’ started the account. Regardless of who contributed

funds to the account, there is no question that the plaintiff was named the

custodian of the account.

11 General Statutes § 45a-559c (f) provides: ‘‘A transferor, the legal representative of a transferor, an adult member of the minor’s family, a guardian

of the person of the minor, the guardian of the minor or the minor if the

minor has attained the age of twelve years may petition the court to remove

the custodian under section 45a-242 and to designate a successor custodian

other than a transferor under section 45a-558a or to require the custodian

to give appropriate bond.’’

12 In the section of its memorandum of decision entitled ‘‘Plaintiff/Appellant’s Position,’’ the Superior Court stated that ‘‘[c]learly, the plaintiff/appellant violated the UTMA statutes by closing the accounts and opening the

[transfer on death] account, even when done with the knowledge and consent

of the defendant/appellee and upon the advice of their financial advisor.’’

Although that statement is true and undisputed by the plaintiff, it says

nothing as to whether those circumstances militate against the exercise

of the extraordinary remedy of removal. In rendering judgment ordering

removal, the court did not discuss the evidence submitted as to those circumstances.