In re Guardianship of Simard

688 A.2d 74, 141 N.H. 525, 1996 N.H. LEXIS 137
CourtSupreme Court of New Hampshire
DecidedDecember 30, 1996
DocketNo. 95-561
StatusPublished

This text of 688 A.2d 74 (In re Guardianship of Simard) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Guardianship of Simard, 688 A.2d 74, 141 N.H. 525, 1996 N.H. LEXIS 137 (N.H. 1996).

Opinion

Horton, J.

The guardian of the estate of a minor appeals an order of the Merrimack County Probate Court (Hampe, J.) appointing co-guardians, disapproving a proposed settlement that directs payment of the settlement funds to an irrevocable trust which extends beyond the minor’s eighteenth birthday, and ordering the co-guardians to post a $1,500,000 corporate fiduciary bond. We vacate the probate court’s order on payment of the settlement funds but affirm the bond requirement.

Joshua R. Simard, a minor, brought a tort action in superior court for injuries allegedly received at birth. After a jury trial, judgment was entered for Joshua in the amount of $2,750,000, and the defendants filed an appeal. Thereafter, the parties agreed to a proposed settlement under which Joshua would recover $2,525,000. Following the deduction of attorney’s fees and expenses, it is estimated that Joshua would receive approximately $1,650,000 from the settlement.

As required by RSA 464-A:42 (Supp. 1996) (version effective until Jan. 1, 1997), Joshua’s parents filed a petition in the probate court to approve their guardianship of Joshua’s estate. They attached a copy of the petition for approval of the settlement on behalf of a minor that they intended to file in the superior court. The proposed settlement provides for the settlement proceeds to be paid directly to an irrevocable trust, the trustees of which would administer and invest the funds for Joshua’s benefit. The proposed trustees were Joshua’s father, since deceased, his mother, and State Street Bank and Trust Company of New Hampshire. According to the proposal, Joshua could request one-third of the trust principal when he reaches twenty-five years of age and withdraw the entire remaining trust principal when he attains age thirty.

Following a hearing in May 1995, the probate court issued an order appointing Joshua’s parents as guardians of his estate, but specifically disapproving of the establishment of an irrevocable trust that extends beyond Joshua’s eighteenth birthday. The court ordered the guardians not to agree to such a trust nor to place the settlement funds in such a trust or any irrevocable trust without approval of the probate court. In addition, the court ordered the guardians to file a $1.5 million corporate surety bond, providing that they may petition to lower the amount of the bond if the funds are placed in a restrictive account.

Joshua’s mother, now the sole guardian, contends that the probate court does not possess subject matter jurisdiction over the form of [527]*527a settlement on behalf of a minor and cannot order her to refrain from paying the settlement proceeds into an irrevocable trust that will continue in existence after Joshua reaches the age of majority. We agree.

The approval of substantial money settlements on behalf of minors involves the interaction of several statutory provisions, see, e.g., RSA 464-A:42 (Supp. 1996) (version effective until Jan. 1, 1997); RSA 464-A:26 (1992 & Supp. 1996); RSA 547:3, 1 (Supp. 1996), and implicates the jurisdictional boundaries of the superior court and the probate court. “In matters of statutory interpretation, this court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole.” Welch v. Director, N.H. Div. of Motor Vehicles, 140 N.H. 6, 8, 662 A.2d 292, 293 (1995) (quotation omitted). We will examine the relevant statutes “not in isolation, but in the context of the overall statutory scheme.” Roberts v. General Motors Corp., 140 N.H. 723, 726, 673 A.2d 779, 782 (1996).

We first observe that RSA 464-A:42 expressly commits approval of all settlements on behalf of a minor in excess of $10,000 to the jurisdiction of the superior or district courts, rather than the probate court. RSA 464-A:42 (Supp. 1996) (version effective until Jan. 1, 1997). The statute also states that before the superior or district court can grant a petition approving a net settlement in excess of $10,000, it

shall require proof in the form of a certified statement from the probate court that the guardian ad litem, parent, next friend, or other person who receives monejr on behalf of the minor whether through settlement, judgment, decree or other order, has been appointed guardian of the estate of such minor and is subject to the duties prescribed under RSA 464-A:26.

This provision incorporates the probate court’s exclusive authority to appoint a guardian to receive a settlement on behalf of a minor and to manage the minor’s estate. See RSA 547:3, I(e) (Supp. 1996); see also Ellsworth v. Heath, 140 N.H. 833, 835, 678 A.2d 138, 139 (1996); Leclerc v. Leclerc, 85 N.H. 121, 124, 155 A. 249, 251 (1931). It also subjects any proposed settlement to the provisions of statutory guardianship and the powers of the probate court thereunder. See RSA 464-A:26, :42 (Supp. 1996) (version effective until Jan. 1, 1997). It does not, however, confer independent authority on the probate court to disapprove of the form of the proposed settlement. See RSA 464-A:42 (Supp. 1996) (version effective until [528]*528Jan. 1, 1997). Although “[a] copy of the petition, or proposed petition, to the superior court or district court seeking approval of the settlement. . . shall be appended to the petition for guardian,” Procedure In the Probate Courts for Guardianships of Minors Necessitated by RSA 464-A:42 (effective Jan. 19, 1994), reprinted in 2 N.H. Court Rules Annot. (Michie 1996), this procedural prerequisite does not vest concurrent jurisdiction over the form of the settlement in the probate court.

We conclude that RSA 464-A:42 vests sole jurisdiction over approval of the form of a substantial settlement on behalf of a minor in the superior or district courts. The form of settlement approved must accommodate all the burdens of guardianship under RSA 464-A:26 and be subject to the authority of the probate court thereunder during the minority of the ward. See RSA 464-A:26; :42 (Supp. 1996) (version effective until Jan. 1, 1997); RSA 547:3, I(e). The superior or district court approving the proposed settlement must ensure that none of the burdens imposed under guardianship and none of the powers granted to the probate court under guardianship are abridged by the settlement during the minority of the ward. The superior court may therefore approve an irrevocable trust that incorporates the burdens of statutory guardianship and is made expressly subject to the provisions of RSA 464-A:26 and the authority of the probate court thereunder during the minority of the beneficiary.

The superior court has the authority to “approve a minor’s settlement which provides for the payment of settlement proceeds after the minor attains the age of majority.” RSA 464-A:42 (Supp. 1996) (version effective until Jan. 1, 1997). For example, we have explicitly acknowledged the validity of minor settlements in the form of structured settlements “wherein payments are made on a periodic basis.” Super. Ct. R. 111(L). Such settlements may be funded by other than an annuity if guardianship over the estate of the minor and probate administration of the settlement are secured. Super. Ct. R. 111(L)(2)(h).

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Related

Stebbins v. Stebbins
438 A.2d 295 (Supreme Court of New Hampshire, 1981)
Cnaeps v. Brown
135 A.2d 721 (Supreme Court of New Hampshire, 1957)
Leclerc v. Leclerc
155 A. 249 (Supreme Court of New Hampshire, 1931)
Welch v. Director, Division of Motor Vehicles
662 A.2d 292 (Supreme Court of New Hampshire, 1995)
Roberts v. General Motors Corp.
673 A.2d 779 (Supreme Court of New Hampshire, 1996)
Ellsworth v. Heath
678 A.2d 138 (Supreme Court of New Hampshire, 1996)

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Bluebook (online)
688 A.2d 74, 141 N.H. 525, 1996 N.H. LEXIS 137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-guardianship-of-simard-nh-1996.