SCOVT overrules Kuhling v. Glaze, 2018 VT 75, ¶ 11, as to the standard of review of conclusions of law, holding de novo review is limited to “pure questions of law” and that a trial court's conclusions will be affirmed where they are "reasonably drawn from the evidence presented."

Jackson v. Jackson , 2025 VT 29 [June 6, 2025.] (Affirms superior court merits ruling and fee award on appeal from probate court in dispute between beneficiaries and a trustee, holding the record supports the findings and the findings support the court's conclusions, including the award of attorney’s fees for work in both courts under 14A V.S.A. § 1004 of the Vermont Trust Code,)

EATON, J.   Petitioners Anne and Jeffrey Jackson sought to remove their father Willard Jackson as trustee of two trusts for which Willard is an income beneficiary and they are remainder beneficiaries.  Petitioners sought to terminate Willard’s beneficial interest in the income of the trusts, terminate the trusts, and distribute the trust assets to the beneficiaries based on an allegation of breach of trust.  Petitioners also sought to have Willard pay restitution to the trust from his personal assets to restore the value of the trust assets that they argued were improvidently spent.  Petitioners initiated their action in the probate division in April 2021 against Willard individually and in his capacity as trustee.  The probate division granted their request to remove Willard as trustee and granted petitioners’ request for attorney’s fees from Willard personally under 14A V.S.A. § 1004.  Willard appealed to the civil division, which considered the matter de novo.  Following a five-day bench trial, the civil division rejected petitioners’ arguments and granted judgment to Willard.  The court also granted Willard’s request for attorney’s fees from petitioners pursuant to 14A V.S.A. § 1004.  Petitioners appeal, arguing that the court erred in rejecting their claims and in awarding attorney’s fees to Willard.  We affirm.

 

Petitioners ask this Court to consider the probate decision as persuasive. We decline to do so. The trial court here conducted a de novo bench trial and the trial court's decision is the only decision before this Court on appeal.

 

The arguments here involve fact-specific inquiries, appropriately subject to a deferential standard of review:

“This Court's review of a trial court's findings . . . following a bench trial is limited. A trial court's factual findings will not be disturbed on appeal unless clearly erroneous when viewed in the light most favorable to the prevailing party. A finding will not be disturbed merely because it is contradicted by substantial evidence; rather, an appellant must show there is no credible evidence to support the finding. This Court gives due regard . . . to the opportunity of the trial court to judge . . . the credibility of the witnesses, and will accordingly defer to the court's determinations regarding the credibility of witnesses and . . . the persuasive effect of the evidence. Finally, a trial court's conclusions will be affirmed where they are reasonably drawn from the evidence presented.”

Lofts Essex, LLC v. Strategis Floor & Décor Inc., 2019 VT 82, ¶ 17 

 

This case does not present pure questions of law subject to de novo review. To the extent that we suggested otherwise in Kuhling v. Glaze, 2018 VT 75, ¶ 11, 208 Vt. 273, 196 A.3d 1125 (“On appeal, we review the trial court's findings of fact for clear error, and its legal conclusions de novo”), the language to that effect conflicts with Lofts Essex, LLC and is overruled.

Petitioners fail to show that the court's findings are clearly erroneous. Petitioners essentially challenge the trial court's assessment of the weight of the evidence and the credibility of witnesses and we do not reweigh the evidence on appeal. While petitioners disagree with the trial court's conclusions, they do not demonstrate error. The court applied the appropriate legal standard. Its findings are supported by the record, and the findings in turn support the court's conclusions. We therefore affirm the court's merits decision in Willard's favor.

 

Two weeks after the merits decision in his favor, Willard moved for attorney's fees under 14A V.S.A. § 1004 of the Vermont Trust Code, which is based on the Uniform Trust Code. Section 1004 provides:

In a judicial proceeding involving the administration of a trust, the Probate Division of the Superior Court, as justice and equity may require, may award costs and expenses, including reasonable attorney's fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.

 The court granted Willard's motion in the full amount requested.   On appeal petitioners argue that there is no basis in "justice or equity" for the award and that the court did not make sufficient findings to support its award. While the court's findings are not extensive, it provided a reasoned basis for its decision and acted within its discretion in awarding fees. We can discern from the court's decision "what was decided and why," which is the purpose of findings. Petitioners did not object below to the time spent by counsel or the rates charged. Petitioners do not show where in the record they argued that the court should not award fees associated with the probate proceeding. The court acted within its discretion in awarding attorney's fees to Willard and we find no grounds to disturb its decision

Affirmed.

SCOVT NOTE 1. Attorney's fees under 14A V.S.A. § 1004.

Compare Curran v. Building Fund of the United Church of Ludlow, 2013 VT 118 ) (where beneficiaries successfully defended settlor's capacity to execute trust trial court did not abuse its discretion in determining “justice and equity” did not require an award of attorney’s fees under 14A V.S.A. § 1004.)

SCOVT NOTE 2: STANDARD OF REVIEW OF "LEGAL CONCLUSIONS"

The statement in Kuhling v. Glaze (EATON, J.), which is here overruled - that a trial court's legal conclusions are reviewed de novo - derives from N.A.S. Holdings, Inc. v. Pafundi, 169 Vt 437 (1999). Pafundi was an adverse possession case where the Court said the trial court's own findings established a different outcome as a matter of law. The Court reversed a ruling that the appellant had established title only to the floor of a slate quarry but not to its walls and held the appellant established adverse possession of the entire quarry on the basis of facts found by the trial court. The Court reviewed the trial courts' conclusions de novo, stating:

Adverse possession is a mixed question of law and fact . . .When reviewing the factual findings of a trial court, . . .findings will stand if there is any reasonable and credible evidence to support them. Review of conclusions of law, however, is nondeferential and plenary. See State v. Pollander, 167 Vt. 301, 304, 706 A.2d 1359, 1360 (1997) (questions of law reviewed de novo); State v. Madison, 163 Vt. 360, 371, 658 A.2d 536, 543 (1995) ("review de novo" commonly used to describe nondeferential on-the-record standard of review that appellate courts apply to lower court determinations regarding questions of law or mixed questions of law and fact)

169 Vt. at 438-39 (Citations omitted.).

The standard in Lofts Essex quoted by the Jackson Court-- that a trial court's conclusions will be affirmed where they are "reasonably drawn from the evidence presented." -- derives from tax appeal cases. E.g. Dewey v. Town of Waitsfield, 2008 VT 41 ¶ 3. But it also   appears in other contexts. E.g..In re Burton Corp. Conditional Use/Act 250, 2024 VT 40 ¶ 18 (" The Environmental Division's legal conclusions are reviewed de novo but will be upheld 'if they are reasonably supported by the findings.'"); Hirchak v. Hirchak, 2024 VT 81 ¶ 15 ("'Where the trial court has applied the proper legal standard, we will uphold its conclusions of law if reasonably supported by its findings.' . . . However, we review pure questions of law de novo")

Appeals. Attorney's fees. SCOVT vacates civil division order in attempted appeal from a probate order that was not appealable because question of attorney’s fees remained to be decided in probate court; Supreme Court has no jurisdiction where there was no jurisdiction below.

 In re Estate of Miriam Thomas, 2022 VT 59 (filed 11/11/2022)

CARROLL, J. Estate appeals the civil division’s order granting former guardian’s motion to dismiss a decision of the probate division. The probate division ordered guardian to reimburse his mother’s estate for what it described as damages incurred during his tenure as her financial guardian. However, the civil division did not have subject-matter jurisdiction because the probate division’s order was not a final order. Accordingly, we vacate the civil division’s order and remand to the probate division for further proceedings.

A necessary predicate for appellate jurisdiction is the order appealed from must be a final order. An order is final if the decree or judgment disposed of all matters that should or could properly be settled at the time and in the proceeding then before the court.

Here, the probate division in ordering reimbursement expressly did not issue a final judgment order, but provided that one would follow its final determination of fees and costs against the Guardian. It set a two-month schedule for the parties to produce evidence on the matter.

We have held that an appeal from an order that resolves attorney’s fees is an appeal from final judgment that brings up on appeal all d substantive issues in the case that were earlier decided. O’Rourke v. Lunde, 2014 VT 88, ¶¶ 13-15, 197 Vt. 360, 104 A.3d 92 (earlier order confirming an arbitration award was properly before the Court on appeal because the later order was “a final judgment [that] it resolved all issues in the case, including the amounts of attorney’s fees” ) Here the order appealed was not a final, appealable order because it expressly left issues to be decided before issuing a final judgment order; it did not dispose “of all matters that should or could” have been properly settled “at the time and in the proceeding then before the court.”

No exception applies. This Court has “frequently treated probate orders as final even where they did not dispose of the entire probate proceeding,” because the “proceedings are frequently lengthy and involve a series of decisions on discrete issues that may be appropriate for immediate review.” Palmer Trust, 2018 VT 134. Palmer held that a probate order that determined whether a particular individual 6 was an heir and beneficiary to a trust was a final, appealable order. Palmer and cases collect in Palmer are distinguishable. These cases Involved a “discreet issue[]”“ or ‘controlling, intermediate decisions’ that where immediate review could correct an error that “‘can harm later phases of the proceeding,’ ” No harm is done to any party by requiring the probate division to determine fees and costs and issue a final judgment order.

Subject-matter jurisdiction either exists or it does not, and where it does not, we must proceed no further. Vermont Rule of Appellate Procedure does not provide an alternative path to reach matters over which this Court has no subject-matter jurisdiction.

The order granting Thomas’s motion to dismiss is vacated and the matter is remanded to the probate division to determine reasonable attorney’s fees and costs and issue a final judgment order.

How cited

SCOVT NOTE Probate Rules 54 and 58, unlike the Vermont and federal civil rules, contain no provision expressly addressing the effect of a request for attroney’s fees on the appealability of a judgment on the merits. See VRCP 58(c) (“when a timely motion for attorneys' fees is made under Rule 54(d)(2), the court, before a notice of appeal has been filed and has become effective, may order that the motion have the same effect under Rule 4 of the Vermont Rules of Appellate Procedure as a timely motion under Rule 59).

Superior court was correct it did not have jurisdiction over probate appeal on question of law, but Court takes jurisdiction and remands.

In re Peter Val Preda Trusts (Peter Val Preda, Jr., Appellant), 2019 VT 61 [8/30/2019]

REIBER, C.J. Petitioner appeals the civil division’s determination that it lacked jurisdiction to consider his appeal of the probate division’s dismissal of his petition to remove the individual family co-trustee on two trusts of which he is a beneficiary and to name his wife as successor trustee. We uphold the civil division’s reasoning but transfer petitioner’s appeal to this Court and remand the matter for further proceedings in the probate division on the petition for removal of trustee

The probate division denied the petition, stating that, “[u]pon review of the Petitioner’s moving papers and the reply of Trustee, the court will decline to intervene in the administration of this trust.” In support of that statement, the probate division cited 14A V.S.A. § 201(a), which provides that the probate division “may intervene in the administration of a trust to the extent its jurisdiction is invoked by an interested person or as provided by law.”

Petitioner filed a timely notice of appeal to the civil division, which determined that it lacked jurisdiction to consider the appeal because it raised only issues of law that should have  been appealed to this Court.  We agree with the civil division’s assessment that petitioner’s appeal from the probate division’s August 23 order essentially concerned questions of law.  Nevertheless, rather than dismissing the appeal, we will consider it as having been filed with this Court rather than the civil division.

Turning to the merits of the appeal, we conclude that the matter must be remanded .

Petitioner’s appeal from the probate division’s August 23, 2018 order is transferred to this Court. The August 23 order is reversed, and the matter is remanded for the probate division to provide petitioner an opportunity to contest the dismissal of his petition for removal and replacement of the individual family co-trustee.

Probate proceedings involve a “series of decisions on discrete issues” that must be appealed, if ever, when the decision is made, not when the whole case is over.

In re Marjorie T. Palmer Trust,       2018 VT 134 [filed 12/21/2018]

SKOGLUND, J. This appeal stems from a probate order approving a special master’s proposed division of real property owned by a trust. The trustees of the Marjorie T. Palmer Trust appealed the probate order to the civil division, which granted summary judgment in favor of appellee David C. Palmer, a beneficiary of the trust. On appeal to this Court, the trustees claim the civil division erred in denying their motion for appellee to undergo genetic testing. The civil division denied the trustees' motion for genetic testing on the ground that the probate division had entered a final decision on that issue in October 2014, which the trustees had failed to appeal.We conclude the trustees' failure to appeal a probate order within thirty days deprived the civil division of jurisdiction to review it.

The trustees argue that the probate division's October 2014 decision on that issue was an interlocutory rather than a final order, and did not prevent them from raising the issue again in the civil division. We disagree.

An interested party may take an appeal from the probate division to the civil division "if the order appealed from is final as to the subject matter before the court." In re Estate of Seward, 139 Vt. 623, 624, 433 A.2d 274, 274 (1981); 12 V.S.A. § 2555.

An order is final if "the decree or judgment disposed of all matters that should or could properly be settled at the time and in the proceeding then before the court." In re Webster's Estate, 117 Vt. 550, 552, 96 A.2d 816, 817 (1953).

If a final order of the probate division is not timely appealed, the civil division lacks jurisdiction to review it.

Vermont has no statute or rule defining what specific types of probate orders are final and appealable.

A review of our decisions in this area reveals that we have frequently treated probate orders as final even where they did not dispose of the entire probate proceeding. See In re Tr. Estate of Flynn, 158 Vt. 268, 270-71, 609 A.2d 984, 986 (1992) (taking jurisdiction of appeal from probate court orders granting motions to intervene and replace trustee of estate); In re Cary's Estate, 81 Vt. 112, 121, 69 A. 736, 739 (1908) (holding that probate court order denying remaindermen's petition to compel accounting by trustee of life estate "was final as to the petitioners, and one from which they could appeal"); In re Bellows' Estate, 60 Vt. 224, 227, 14 A. 697, 699 (1888) (holding superior court erred in dismissing appeal from probate court order removing executor); State v. McKown, 21 Vt. 503, 507 (1849) (holding that guardian had right to immediately appeal probate court order removing him as guardian and appointing another).These decisions implicitly recognize that probate proceedings involve a series of decisions on discrete issues that may be appropriate for immediate review.

Courts in other jurisdictions have recognized that probate court decisions regarding whether particular individuals are heirs are final appealable orders.

It makes sense to treat an order of this type as final and appealable because the identity of heirs and beneficiaries is fundamental to a probate proceeding and resolving disputes regarding who is entitled to distribution from an estate early in the proceeding is in everyone's best interests.

For these reasons, we agree with the civil division that the October 2014 decision of the probate division was a final appealable order because it conclusively determined a discrete issue then before the court: The order left nothing to be decided with regard to the issue of whether David C. Palmer was entitled to distribution under the trust. Accordingly, the trustees' failure to appeal that order within thirty days deprived the civil division of jurisdiction to review it.

SCOVT NOTE:Palmer distinguished in In re Estate of Miriam Thomas, 2022 VT 59 (filed 11/11/2022)(probate order not appealable when attorney's fees were undecided)

Probate appeal. Statement of questions does not limit superior court. Summary judgment is always provisional until final judgment is entered.

In re Estates of Allen, 2011 VT 95 (Dooley, J.)

This case originates from a quiet-title action in probate court by defendant Richard Rupe and his father laying claim to certain mineral rights by way of adverse possession.  Defendant and his father appealed the probate decision to the superior court, which, after first granting summary judgment in favor of plaintiff on certain issues, ultimately dismissed plaintiff’s claim to the mineral rights and awarded all rights, title, and interest to defendant. Plaintiff now appeals this superior court judgment, arguing  the court exceeded its authority by considering more than the issues raised in the statement of questions submitted on appeal from the probate court and resolved by summary judgment.  We affirm. 

 Plaintiff’s main argument on appeal is that, under Rule 72, the superior court had no authority to require plaintiff’s to prove an interest in the mineral rights by adverse possession because the court granted summary judgment for plaintiff on defendant’s four questions. The summary judgment decision was an interlocutory order.  If plaintiff believed that the summary judgment meant that he had prevailed fully on the merits, he should have sought entry of judgment under Vermont Rule of Civil Procedure 58.  See Powers v. Hayes, 170 Vt. 639, 640, 751 A.2d 781, 782 (2000) (mem.) (stating that summary judgment is not entry of judgment as required for a final judgment).  As it was the summary judgment did not preven the trial court from requiring him to prove his adverse possession claim.

A case such as this is a hybrid of an appeal from the probate court and a de novo proceeding that is conducted as if the probate court proceeding never occurred.  The statement of questions required by Rule 72(c) has a limited function.  Recently, we have held that while a list of certified questions is mandatory, it only “serves to focus, but cannot limit, the issues for the court.”  In re Estate of Doran, 2010 VT 13, ¶ 14, 187 Vt. 349, 993 A.2d 436.

We hold that the superior court acted correctly in determining that plaintiff had no interest in the mineral rights.

Affirmed.