Windham County assistant judge spared charges of contempt
BELLOWS FALLS — A Windham County assistant judge was spared charges of contempt but has been ordered to relinquish the home of Catherine Tolaro, who died in 2014.
"The motion for contempt is denied as the court does not have sufficient evidence," wrote Joanne M. Ertel, a probate judge in Windsor County. However, she wrote, he must remove all of his property from Tolaro's home by the end of the month.
During a recent hearing in Windsor District Court to discuss the status of Tolaro's estate, the administrator of the estate, Jodi French, of French & French in Brattleboro, asked Ertel to hold Kane in contempt for refusing to cooperate, failing to vacate Tolaro's house at 1 Pleasant St. as ordered in August, and continuing to access the house after the order.
"There was no effort made to accommodate the Administrator," wrote Ertel, in an opinion dated Oct. 17. "In addition, Kane did not inform the Administrator that the first floor unit was full of his possessions. He did not inform the Administrator that he had retained a set of keys. In addition, Kane never offered to pay fair market value for the lease."
However, Ertel concluded there was not enough evidence to charge Kane with contempt. Ertel noted that Kane may have been "misinformed" about his duties "and acted in good faith," but because of Kane's actions, it would take the court and the estate administrator time to untangle the details.
In proceedings separate from the hearings in Windsor Probate Court, an investigation into Kane's actions was conducted by Ian Carleton, an attorney with Sheehey Furlong & Behm in Burlington, and presented to the Vermont Judicial Conduct Board. Carleton provided the board with "facts supporting a misconduct charge," that included violations of professional ethics related to a judge's duties and responsibilities.
Four years before her death in April 2014, Tolaro gave Paul Kane a power of attorney over her affairs. According to court documents, Kane used his power of attorney to secure a pair of annuities totaling $208,000 in his name and the name of his now dead wife. An $144,000 annuity was returned to the estate "after questions were raised by the insurance company ..." wrote Ertel. However, only $18,000 of a $64,000 annuity was returned to the estate. Kane testified during a hearing earlier this year that the remaining $46,000 "was used for estate purposes." Kane also received $85,000 from Tolaro as gifts in 2010.
In addition, according to court documents, Kane used estate assets and "orchestrated" two loans to acquaintances totaling $74,000. Both debtors defaulted on those loans, noted Ertel. Before and after Tolaro's death, Kane placed some of those loan payments in his own account, claiming "these payments were reimbursements to him for payments made on behalf of Tolaro's estate." After the debtors defaulted, he forgave potions of both debts.
Carleton also wrote in his findings presented to the Judicial Conduct Board that Kane "did not provide entirely truthful testimony at a November 5, 2015 hearing in connection with Ms. Tolaro's probate proceeding. Specifically, he testified that at least one of the loans he made to a personal friend came from a joint account owned by him and Ms. Tolaro. Apart from the fact that maintaining such an account would likely have constituted unlawful commingling under Vermont's (Power of Attorney) statute, the account at issue was at all times in Tolaro's name only."
At the time of Tolaro's death, her assets totaled nearly $800,000. Between 2010 and 2014, wrote Bellows Falls attorney L. Raymond Massucco in a filing before the Windsor Probate Court, the estate was eventually depleted to a balance of zero, not including the value of the home. Massucco is representing Michael Tolaro and the Knights of Columbus, both beneficiaries of the will.
Massucco maintained that Kane used his "power of attorney and influence (over Tolaro) to transfer the vast majority of her assets to himself and his late wife." To make matters worse, wrote Massucco, "Paul Kane has personally filed a claim against the estate in the amount of $833,292.51."
In his findings, Carleton wrote that Kane's claim was "manifestly implausible ... (and) (a)sserting such a manifestly unsupportable claim does not comply with high standards of integrity and candor expected of judges by the Judicial Code."
Kane filed his claim against the estate, contending he spent personal funds on maintaining the estate, including making renovations to the house. "Kane ... has no authority to reimburse himself for expense alleged to have been made on behalf of the estate without court approval," wrote Ertel on Aug. 15. "While it is certainly possible that Kane is entitled to reimbursement, any such request must be authorized by the court."
On Oct. 6, Ertel held a hearing to review Kane's motion for partial distribution of the estate. Massucco and French submitted motions in opposition to Kane's request. While Kane has asked the court to turn over Tolaro's Bellows Falls home to him — as is the intent of Tolaro's will — French argued that "Kane has failed to account for management of estate assets and his improprieties may have deprived the estate of assets."
French has also asked the court to consider the fact that Tolaro's will was updated after she started showing signs of Alzheimer's disease and after she moved in with Kane and his now-dead wife. Those changes included, wrote French, "substantially larger gifts to Paul Kane than in her then-existing Will."
"The administrator also alleges that it is possible that Tolaro's will may be set aside because she was not competent, was subject to undue influence and because heirs at law were not given the opportunity to object and be heard," wrote Ertel. "If the will were set aside. Kane would take nothing because he is not an heir at law. The court does not even reach this argument because the court is not satisfied that Kane has shown that there will be sufficient assets."
While the court has the power to turn over the property to Kane, it needs to determine if Kane, did in fact, deprive the estate of assets. If it finds Kane did so, it can have the home sold "to make the estate whole and to pay administrative expenses."
"At this juncture," wrote Ertel, "the court cannot possibly make the determination that there will be sufficient assets remaining if the court were to (turn over) the property. ... This task has been complicated by Kane's failure to provide a complete accounting of his actions ... The piecemeal provision of documents does not substitute for an accounting."
The judge also expressed concerns that Kane "has treated the assets of the estate as his own which is demonstrated by his possession of the real estate, his rental of the real estate, and his sale of estate assets."
If Kane does not remove his property by Oct. 31, "the Administrator shall have the right to dispose of it without further notice to Paul Kane (who will) be charged with the costs associated with removal," wrote Ertel.
Whether a county prosecutor or the Vermont Attorney General's Office can file criminal charges based on Carleton's or the probate court's findings is not known at this time.
The proceedings are being conducted in Windsor County to avoid any conflicts of interest because Kane is an assistant judge in Windham County.
Bob Audette can be contacted at 802-254-2311, ext. 160.
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