Albert Fischer Family Trust v. Aletheia Fischer

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0725, Albert Fischer Family Trust v.
Aletheia Fischer, the court on June 28, 2024, issued the
following order:

The court has reviewed the written arguments and record submitted on
appeal and has determined to resolve the case by way of this order. See Sup. Ct.
R. 20(2). The plaintiff, the Albert Fischer Family Trust, appeals the denial by the
Circuit Court (Spony, J.) of its small claim action for conversion against the
defendant, Aletheia Fischer. At issue is a check for $1,850 signed by Albert
Fischer shortly before his death. The defendant is Albert Fischer’s widow. The
trustee of the plaintiff trust, Mark Fischer, is Albert Fischer’s son from a previous
marriage. We affirm.

The trial court found, or the record supports, the following facts. The
check for $1,850 was signed by Albert Fischer on September 9, 2021, and was
intended to pay his share of certain closing costs for a real estate transaction. As
of September 16, however, it became known that the real estate transaction
would not take place, and the check was returned. The defendant testified that
she did not know what to do with it — Albert then told her to put it in their joint
checking account. The check was deposited in the joint account on September
20. Albert died on September 25.

Relying upon case law from other jurisdictions, the plaintiff argues that the
mere fact that the funds were deposited into the joint account does not change
the fact that the funds were Albert’s separate property. The law in New
Hampshire governing joint accounts, however, is set forth in RSA 383-B:4-405
(2017), which provides, in pertinent part:

In the absence of a written agreement, if 2 or more persons are
named on a deposit account as owners, the account shall be payable
to any owner, and in the event of death, to the survivor or survivors
of them. The survivors shall be entitled to ownership of the account
whether or not (i) the funds deposited were the property of only one
or some of the owners, (ii) at the time of the making of such deposits
there was any intention on the part of the owners making such
deposit to vest the other owner or owners with a present interest
therein, (iii) only one of the owners during their several lives had the
 right to withdraw such deposit, or (iv) there was any delivery of any
bank book, account book, savings account book, certificate of
deposit, or other evidence of such an account, by the owner or
owners making such deposit to the other owner or owners.

(Emphasis added.) Although the defendant and Albert had entered into an
antenuptial agreement, that agreement anticipated that the parties would open a
joint checking account, and does not contain any provision providing that the
survivor would not be entitled to ownership of that account upon death.
Therefore, the statute governs. Moreover, as the trial court found, while the
$1,850 was Albert’s separate property under the terms of the antenuptial
agreement when the check was written, he later chose to have it deposited in the
joint account. Nothing in the antenuptial agreement prohibited either party from
voluntarily transferring property to the joint account.

The plaintiff also contends that the trial court erred in ruling on pre-trial
discovery matters and in denying the admission of certain exhibits. We review a
trial court’s rulings on the management of discovery and the admissibility of
evidence under an unsustainable exercise of discretion standard. In the Matter
of Hampers & Hampers, 154 N.H. 275, 280 (2006). To meet this standard, the
plaintiff must demonstrate that the trial court’s rulings were clearly untenable or
unreasonable to the prejudice of its case. Id.

Here, the plaintiff has failed to demonstrate reversible error. The pre-trial
rulings on discovery related to the timeliness of the defendant’s responses to the
plaintiff’s interrogatories and request for production of documents. The plaintiff
admitted receiving the responses by email on October 10, and by mail on October
16. The trial was on October 26.

The evidence that was not admitted consisted of a bank statement and two
checks that were in the plaintiff’s possession prior to the close of discovery —
they were not provided to the plaintiff by the defendant as part of the discovery
process. The plaintiff argues, without further explanation, that this evidence was
deemed important by the plaintiff only after it received the defendant’s discovery
responses. However, the plaintiff admits that the due date for the exchange of
exhibits was October 12, which is after the plaintiff received the discovery by
email, and the plaintiff neither supplemented its exhibits nor moved for an
extension of time to do so.

As the appealing party, the plaintiff has the burden of demonstrating
reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our
review of the trial court’s order, the plaintiff’s appellate arguments, the relevant

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law, and the record submitted on appeal, we conclude that the plaintiff has not
demonstrated reversible error. See id.

Affirmed.

MacDonald, C.J., and Bassett, Hantz Marconi, Donovan, and Countway,
JJ., concurred.

Timothy A. Gudas,
Clerk

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