GRODZICKI v. GRODZICKI

Docket Not Available

154 Conn. 456 (1967) | Cited 25 times | Supreme Court of Connecticut | January 25, 1967

The plaintiff husband brought this action forconversion against the defendant wife. In thisappeal by her, we are concerned only with thefirst count of the complaint in which the plaintiffalleged that he was the owner of an undividedone-half interest in an account with the EastHartford Aircraft Federal Credit Union fromwhich the defendant withdrew all the fundsand converted them to her own use. Thedefendant denied the allegations of thecomplaint and filed a counterclaim in threecounts. The trial court found for the plaintiff

[154 Conn. 458]

     on the complaint to recover of the defendant thesum of $4680.28 and for the defendant, on thesecond count of her counterclaim, in the sum of$1000. The judgment on the counterclaim was setoff against the plaintiff's recovery, leaving abalance of $3680.28 due the plaintiff from thedefendant. Neither party has appealed from thejudgment on the counter-claim, and we areconcerned only with the defendant's appeal fromthe judgment rendered on the complaint.

The defendant, in her appeal, assigns error inthe failure of the trial court to find certainmaterial facts which she claims were admitted orundisputed and in the finding of certain factswithout evidence. The corrections to which thedefendant has shown herself entitled areincorporated in the following statement of factsfound by the court.

The plaintiff and the defendant were married onSeptember 26, 1942, and lived together until May17, 1963, when the defendant wife left theplaintiff and their two minor children. Thedefendant worked during the marriage at the Prattand Whitney Aircraft Company from 1954 until thedate of trial. The plaintiff was employed inMeriden at the International Silver Company. Atthe commencement of her employment, the defendantopened a savings account in her own name in theEast Hartford Aircraft Federal Credit Union,and, on March 24, 1954, she changed this accountso that it was in the joint names of her husbandand herself, with the right of survivorship.During this time, the defendant depositedapproximately one-half of her gross salary in thejoint account and also periodically purchasedbonds in the joint names of herself and herhusband. At no time did the plaintiff deposit anymoney in this account. On November 1, 1961,

[154 Conn. 459]

     the defendant, without the plaintiff's knowledgeor permission, withdrew the entire savings fromthe Federal Credit Union and redeposited this sumin a new account in her own name. On July 27,1962, the defendant withdrew the entire account inthe sum of $9360.47 from the credit union anddeposited it in the Puritan Bank and Trust Companyin Meriden in her own name as trustee for theparties' two children.

Three paragraphs of the finding are attacked bythe defendant as found without evidence. Thesefindings, which are crucial to the plaintiff'scase, recite the following facts: The plaintiffand the defendant agreed to accumulate theirentire financial estate jointly as communityproperty. Pursuant to this agreement, theplaintiff and the defendant opened several savingsaccounts in their joint names with the right ofsurvivorship, purchased bonds and real estate inthe same manner, and had a safe deposit box inboth names. During this time and pursuant to thisagreement, the plaintiff's moneys were utilizedfor, among other things, the support andmaintenance of the family household and mortgagepayments, and the balance was put into theparties' joint savings bank accounts or wasutilized for the purchase of bonds in their jointnames. "It is a well-settled rule that this courtwill not look beyond the appendices to the briefsin order to find supporting evidence. PracticeBook 645, 721. `It is the duty of both parties toprint all material evidence in the appendices totheir briefs'. Pass v. Pass, 152 Conn. 508, 511,208 A.2d 753; Cushing v. Salmon, 148 Conn. 631,632, 173 A.2d 543; State v. Pundy, 147 Conn. 7, 9,156 A.2d 193." Solari v. Seperak, 154 Conn. 179,183, 224 A.2d 529. In the present case, theplaintiff filed no appendix setting forth

[154 Conn. 460]

     evidence to support these findings, and thedefendant's appendix recites no such evidence. Wehave no alternative but to conclude that thesefindings were not supported by the evidence andmust therefore be stricken. In consequence ofthis, the conclusion of the trial court that theparties held their property jointly and intendedthat it be community property cannot be sustained.

The plaintiff urges that the judgment of thetrial court should be sustained by virtue ofGeneral Statutes (Rev. to 1962) 36-3, which readsas follows: "(1) When a deposit has been made inthis state in any state bank and trust company,national banking association, savings bank,industrial bank or private bank, or an account hasbeen issued in this state by any building orsavings and loan association or federal savingsand loan association or credit union, in the namesof two or more persons and in form to be paid toany one or the survivor, or survivors, of them,such deposit or account and any additions theretomade by any of such persons after the making orissuance thereof, together with all dividends orinterest or increases credited thereon, shall beheld for the exclusive use of such persons and maybe paid to any of them during the lifetime of allof them or to the survivor or survivors after thedeath of one or more of them, and such payment andthe receipt or acquittance of the person orpersons to whom such payment is made shall be avalid and sufficient release and discharge for allpayments so made. The making of a deposit orissuance of an account in such form shall, in theabsence of fraud or undue influence, be conclusiveevidence, in any action or proceeding respectingthe ownership of, or the enforcement of the obligationcreated or represented by, such deposit or account,

[154 Conn. 461]

     of the intention of all of the named ownersthereof to vest title to such deposit or account,including all additions and increments thereto, insuch survivor or survivors. (2) This section shallnot apply to any deposit or account referred toherein where either owner died before October 1,1953, nor shall it apply to any action pending onsaid date."

The plaintiff interprets the statute to meanthat the creation of a joint account in the namesof the plaintiff and the defendant and payable tothe survivor of them gave each of them anundivided one-half interest inter vivos in theaccounts in the absence of proof of fraud or undueinfluence. An examination of the legislativehistory of the statute indicates that in 1947 thelegislature enacted 1024i of the 1947 Supplement(Rev. 1949, 5831) which provided: "A deposit orany part thereof made in any savings bank or thesavings department of any state bank and trustcompany or the time deposit department of anynational banking association located in this statein the name of two persons and payable to eitheror the survivor may be paid to either of suchpersons and the receipt of the person so paidshall be a valid release and discharge for thepayment so made." From the language of thestatute, which makes no attempt to define theinterest of either party in the account, it isobvious that its purpose was to protect theinterests of the banks. A number of states havesuch statutes, which are referred to as "bankprotection statutes." This section was repealed in1953, and 2102c of the 1953 Cumulative Supplementwas enacted which, with certain amendments adoptedin 1961 to clarify the application of the statuteto accounts issued to more than two persons, becamethe present 36-3. The plaintiff argues that the statute

[154 Conn. 462]

     in its present form created a conclusive presumptionthat the defendant wife intended to vest an undividedone-half interest in the plaintiff as of the time sheput his name on the account and that his right to thisinterest continued even after the defendant withdrewthe funds from the account. The language ofthe statute does not warrant this construction."The making of a deposit . . . in such form shall,in the absence of fraud or undue influence, beconclusive evidence, in any action or proceedingrespecting the ownership of . . . suchdeposit . . . of the intention of all of the namedowners thereof to vest title to such deposit . . .in such survivor or survivors." General Statutes(Rev. to 1962) 36-3. The obvious intent of thelegislature is to give to the survivor orsurvivors an irrebuttable presumption ofownership. "Special statutes have been enacted insix states.1 . . . [T]hey specificallyrecognize the joint account as a method oftransfer of funds to the surviving co-depositor.None of these statutes, however, makes any mentionof the co-depositors' inter vivos interests. Thus,although the survivorship question is settled inthese jurisdictions, the question of the donee'sinter vivos interests is not answered, and thecourts must once again look to their common law."Comment, "Property - Joint Bank Accounts - The Donee'sInter Vivos Interest," 60 Mich. L. Rev. 972, 981;see Kepner, "Five More Years of the Joint BankAccount Muddle," 26 U. Chi. L. Rev. 376, 396,397. The first sentence of subsection (1) of thestatute permits the payment by the bank to any ofthe co-depositors during the lifetime of all ofthem or to the survivor or survivors after the

[154 Conn. 463]

     death of one or more of them "and the receipt oracquittance of the person or persons to whom suchpayment is made shall be a valid and sufficient releaseand discharge for all payments so made." This portionof the statute is obviously for the protection ofthe banks. The language of the statute does notdetermine the respective rights of the partiesinter vivos. The presumption created by the secondsentence of subsection (1) of the statute has noapplication to an action between the parties whenall of them are alive. In such a case, we mustlook to our common law for a determination of thequestion presented. In the finding, which wasnecessarily curtailed by the absence of anappendix, there are no facts to support a validgift inter vivos. Fasano v. Meliso, 146 Conn. 496,502, 152 A.2d 512; Driscoll v. Norwich SavingsSociety, 139 Conn. 346, 350, 93 A.2d 925; Bachmannv. Reardon, 138 Conn. 665, 667, 88 A.2d 391.

There is error, the judgment on the complaint isset aside and the case is remanded with directionto render judgment for the defendant on the complaint;the judgment for the defendant on thesecond count of the counterclaim is not affected.

In this opinion the other judges concurred.

1. Alabama, Connecticut, Maine, New Hampshire, NewJersey and vermont.

The plaintiff husband brought this action forconversion against the defendant wife. In thisappeal by her, we are concerned only with thefirst count of the complaint in which the plaintiffalleged that he was the owner of an undividedone-half interest in an account with the EastHartford Aircraft Federal Credit Union fromwhich the defendant withdrew all the fundsand converted them to her own use. Thedefendant denied the allegations of thecomplaint and filed a counterclaim in threecounts. The trial court found for the plaintiff

[154 Conn. 458]

     on the complaint to recover of the defendant thesum of $4680.28 and for the defendant, on thesecond count of her counterclaim, in the sum of$1000. The judgment on the counterclaim was setoff against the plaintiff's recovery, leaving abalance of $3680.28 due the plaintiff from thedefendant. Neither party has appealed from thejudgment on the counter-claim, and we areconcerned only with the defendant's appeal fromthe judgment rendered on the complaint.

The defendant, in her appeal, assigns error inthe failure of the trial court to find certainmaterial facts which she claims were admitted orundisputed and in the finding of certain factswithout evidence. The corrections to which thedefendant has shown herself entitled areincorporated in the following statement of factsfound by the court.

The plaintiff and the defendant were married onSeptember 26, 1942, and lived together until May17, 1963, when the defendant wife left theplaintiff and their two minor children. Thedefendant worked during the marriage at the Prattand Whitney Aircraft Company from 1954 until thedate of trial. The plaintiff was employed inMeriden at the International Silver Company. Atthe commencement of her employment, the defendantopened a savings account in her own name in theEast Hartford Aircraft Federal Credit Union,and, on March 24, 1954, she changed this accountso that it was in the joint names of her husbandand herself, with the right of survivorship.During this time, the defendant depositedapproximately one-half of her gross salary in thejoint account and also periodically purchasedbonds in the joint names of herself and herhusband. At no time did the plaintiff deposit anymoney in this account. On November 1, 1961,

[154 Conn. 459]

     the defendant, without the plaintiff's knowledgeor permission, withdrew the entire savings fromthe Federal Credit Union and redeposited this sumin a new account in her own name. On July 27,1962, the defendant withdrew the entire account inthe sum of $9360.47 from the credit union anddeposited it in the Puritan Bank and Trust Companyin Meriden in her own name as trustee for theparties' two children.

Three paragraphs of the finding are attacked bythe defendant as found without evidence. Thesefindings, which are crucial to the plaintiff'scase, recite the following facts: The plaintiffand the defendant agreed to accumulate theirentire financial estate jointly as communityproperty. Pursuant to this agreement, theplaintiff and the defendant opened several savingsaccounts in their joint names with the right ofsurvivorship, purchased bonds and real estate inthe same manner, and had a safe deposit box inboth names. During this time and pursuant to thisagreement, the plaintiff's moneys were utilizedfor, among other things, the support andmaintenance of the family household and mortgagepayments, and the balance was put into theparties' joint savings bank accounts or wasutilized for the purchase of bonds in their jointnames. "It is a well-settled rule that this courtwill not look beyond the appendices to the briefsin order to find supporting evidence. PracticeBook 645, 721. `It is the duty of both parties toprint all material evidence in the appendices totheir briefs'. Pass v. Pass, 152 Conn. 508, 511,208 A.2d 753; Cushing v. Salmon, 148 Conn. 631,632, 173 A.2d 543; State v. Pundy, 147 Conn. 7, 9,156 A.2d 193." Solari v. Seperak, 154 Conn. 179,183, 224 A.2d 529. In the present case, theplaintiff filed no appendix setting forth

[154 Conn. 460]

     evidence to support these findings, and thedefendant's appendix recites no such evidence. Wehave no alternative but to conclude that thesefindings were not supported by the evidence andmust therefore be stricken. In consequence ofthis, the conclusion of the trial court that theparties held their property jointly and intendedthat it be community property cannot be sustained.

The plaintiff urges that the judgment of thetrial court should be sustained by virtue ofGeneral Statutes (Rev. to 1962) 36-3, which readsas follows: "(1) When a deposit has been made inthis state in any state bank and trust company,national banking association, savings bank,industrial bank or private bank, or an account hasbeen issued in this state by any building orsavings and loan association or federal savingsand loan association or credit union, in the namesof two or more persons and in form to be paid toany one or the survivor, or survivors, of them,such deposit or account and any additions theretomade by any of such persons after the making orissuance thereof, together with all dividends orinterest or increases credited thereon, shall beheld for the exclusive use of such persons and maybe paid to any of them during the lifetime of allof them or to the survivor or survivors after thedeath of one or more of them, and such payment andthe receipt or acquittance of the person orpersons to whom such payment is made shall be avalid and sufficient release and discharge for allpayments so made. The making of a deposit orissuance of an account in such form shall, in theabsence of fraud or undue influence, be conclusiveevidence, in any action or proceeding respectingthe ownership of, or the enforcement of the obligationcreated or represented by, such deposit or account,

[154 Conn. 461]

     of the intention of all of the named ownersthereof to vest title to such deposit or account,including all additions and increments thereto, insuch survivor or survivors. (2) This section shallnot apply to any deposit or account referred toherein where either owner died before October 1,1953, nor shall it apply to any action pending onsaid date."

The plaintiff interprets the statute to meanthat the creation of a joint account in the namesof the plaintiff and the defendant and payable tothe survivor of them gave each of them anundivided one-half interest inter vivos in theaccounts in the absence of proof of fraud or undueinfluence. An examination of the legislativehistory of the statute indicates that in 1947 thelegislature enacted 1024i of the 1947 Supplement(Rev. 1949, 5831) which provided: "A deposit orany part thereof made in any savings bank or thesavings department of any state bank and trustcompany or the time deposit department of anynational banking association located in this statein the name of two persons and payable to eitheror the survivor may be paid to either of suchpersons and the receipt of the person so paidshall be a valid release and discharge for thepayment so made." From the language of thestatute, which makes no attempt to define theinterest of either party in the account, it isobvious that its purpose was to protect theinterests of the banks. A number of states havesuch statutes, which are referred to as "bankprotection statutes." This section was repealed in1953, and 2102c of the 1953 Cumulative Supplementwas enacted which, with certain amendments adoptedin 1961 to clarify the application of the statuteto accounts issued to more than two persons, becamethe present 36-3. The plaintiff argues that the statute

[154 Conn. 462]

     in its present form created a conclusive presumptionthat the defendant wife intended to vest an undividedone-half interest in the plaintiff as of the time sheput his name on the account and that his right to thisinterest continued even after the defendant withdrewthe funds from the account. The language ofthe statute does not warrant this construction."The making of a deposit . . . in such form shall,in the absence of fraud or undue influence, beconclusive evidence, in any action or proceedingrespecting the ownership of . . . suchdeposit . . . of the intention of all of the namedowners thereof to vest title to such deposit . . .in such survivor or survivors." General Statutes(Rev. to 1962) 36-3. The obvious intent of thelegislature is to give to the survivor orsurvivors an irrebuttable presumption ofownership. "Special statutes have been enacted insix states.1 . . . [T]hey specificallyrecognize the joint account as a method oftransfer of funds to the surviving co-depositor.None of these statutes, however, makes any mentionof the co-depositors' inter vivos interests. Thus,although the survivorship question is settled inthese jurisdictions, the question of the donee'sinter vivos interests is not answered, and thecourts must once again look to their common law."Comment, "Property - Joint Bank Accounts - The Donee'sInter Vivos Interest," 60 Mich. L. Rev. 972, 981;see Kepner, "Five More Years of the Joint BankAccount Muddle," 26 U. Chi. L. Rev. 376, 396,397. The first sentence of subsection (1) of thestatute permits the payment by the bank to any ofthe co-depositors during the lifetime of all ofthem or to the survivor or survivors after the

[154 Conn. 463]

     death of one or more of them "and the receipt oracquittance of the person or persons to whom suchpayment is made shall be a valid and sufficient releaseand discharge for all payments so made." This portionof the statute is obviously for the protection ofthe banks. The language of the statute does notdetermine the respective rights of the partiesinter vivos. The presumption created by the secondsentence of subsection (1) of the statute has noapplication to an action between the parties whenall of them are alive. In such a case, we mustlook to our common law for a determination of thequestion presented. In the finding, which wasnecessarily curtailed by the absence of anappendix, there are no facts to support a validgift inter vivos. Fasano v. Meliso, 146 Conn. 496,502, 152 A.2d 512; Driscoll v. Norwich SavingsSociety, 139 Conn. 346, 350, 93 A.2d 925; Bachmannv. Reardon, 138 Conn. 665, 667, 88 A.2d 391.

There is error, the judgment on the complaint isset aside and the case is remanded with directionto render judgment for the defendant on the complaint;the judgment for the defendant on thesecond count of the counterclaim is not affected.

In this opinion the other judges concurred.

1. Alabama, Connecticut, Maine, New Hampshire, NewJersey and vermont.

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