Doe v. Doe

• Decision Date: 04 September 2009
• Docket Number: No. 2D08-3402.,2D08-3402.
• Citation: 20 So.3d 892
• Parties: Catherine E. DOE, a/k/a Catherine D. Roe, Appellant, v. Chester P. DOE, III; Roger E. Doe; and XYZ Bank of Florida, N.A., as Co-Trustees of the Chester P. Doe, Jr., Marital Trust and the Eleanor Warren Doe Revocable Trust, Appellees.
• Court: Florida District Court of Appeals

20 So.3d 892

Catherine E. DOE, a/k/a Catherine D. Roe, Appellant, v. Chester P. DOE, III; Roger E. Doe; and XYZ Bank of Florida, N.A., as Co-Trustees of the Chester P. Doe, Jr., Marital Trust and the Eleanor Warren Doe Revocable Trust, Appellees.

No. 2D08-3402.

District Court of Appeal of Florida, Second District.

September 4, 2009.

Rehearing Denied November 13, 2009.

Nicholas P. Sardelis, Jr., of Law Offices of Sardelis and Bowles, L.L.P., Sarasota, for Appellant.

Barry F. Spivey of Ruden, McClosky, Smith, Schuster & Russell, P.A., Sarasota, for Appellees.

WALLACE, Judge.

Catherine E. Doe, a/k/a Catherine D. Roe (Catherine), appeals the circuit court's summary judgment in favor of Chester P. Doe, III, Roger E. Doe, and XYZ Bank of Florida, N.A., as Co-Trustees of the Chester P. Doe, Jr., Marital Trust and the Eleanor Warren Doe Revocable Trust (collectively, the Trustees).¹ The trusts administered by the Trustees include class gifts to the grandchildren of the settlors, Chester P. Doe, Jr. (Chester Jr.) and Eleanor Warren Doe (Eleanor). However, the class gifts are limited to "only children and descendants by blood." Chester P. Doe III (Chester III) is one of the settlors' sons. When Catherine was born, Chester III was married to her mother. On Catherine's birth certificate, Chester III is listed as her father. Nevertheless, because DNA testing performed after Catherine was an adult had shown that Chester III was not Catherine's biological father, the circuit court ruled that she was "not a descendant by blood" of the settlors and thus had no beneficial interest under the trusts. Because we conclude that Catherine was not excluded as a beneficiary of the trusts' class gifts by the limitation to "only children and descendants by blood," we reverse.

I. THE FACTS

A. The Trusts

On June 28, 1988, Chester Jr. and Eleanor, his wife, executed mutual revocable trust agreements. The current trustees of the trusts are Chester III and Roger E. Doe (the settlors' sons) and XYZ Bank.

The trusts, as subsequently amended, each contained a provision (Article IV) making cash gifts to various persons upon the death of the settlor. The beneficiaries of the cash gifts payable under Article IV were identified by name. Each of the settlors' four grandchildren, including Catherine, was to receive $50,000.

Chester Jr. died in 1995. The next year, Eleanor executed a fourth amendment to her trust amending Article IV as it related to Catherine. Instead of giving the $50,000 cash gift directly to Catherine, the amended Article IV gave the cash to Chester III with precatory language requesting that "he use this distribution, in his sole discretion, for the benefit of his child, [Catherine]." In the event Chester III predeceased Eleanor, the amended Article IV gave the cash directly to Catherine.

After the death of Chester Jr. in 1995, the Trustees distributed the cash gifts payable under Article IV of his trust to the named beneficiaries, including Catherine. Additional assets from Chester Jr.'s trusts were placed in a marital trust. Upon Eleanor's death, Chester Jr.'s marital trust is to be divided into subtrusts as follows: "[O]ne (1) share with respect to each then living grandchild of the Settlor and one (1) share with respect to the then living descendants, collectively, of each then deceased grandchild of the Settlor."

Eleanor died in 2005. Upon her death, a portion of her trust is to be used to create subtrusts for her grandchildren. In addition, Eleanor's grandchildren, or their descendants, are remainder beneficiaries of subtrusts created by Eleanor's trust for her two sons, Chester III and Roger.

Each of the settlors' trusts contains an identical provision that we are called upon to interpret in this case. This provision, designated as Article XVIII, states:

For all purposes, hereunder, in determining whether any person is a child or descendant, only children and descendants by blood shall be included. The term "grandchild[,]" as used herein[,] includes all grandchildren of the Settlor and is not limited to grandchildren by the one son whose death causes a trust to terminate.

The critical language here is the limitation of beneficiaries of the class gifts made in both trusts to "only children and descendants by blood." In other words, Article XVIII restricts the class gifts in the trusts to persons whose relationship to the settlors is one of lineal consanguinity.

B. Catherine's Family History and the DNA Testing

In July 1966, Chester III married Catherine's mother. Catherine was born approximately six and one-half months later. Her birth certificate lists Chester III as her father. Chester III and Catherine's mother were divorced in 1971. Chester III and his wife executed a marital settlement agreement that provided, in pertinent part: "There has been one child born of this marriage, to wit: [CATHERINE DOE], age 4 years...." The agreement, which included typical provisions for the payment of child support by Chester III and visitation with his daughter, was approved and incorporated in the final judgment of dissolution of marriage that was subsequently entered. It does not appear from our record that this final judgment has ever been vacated or modified.

In 1999, when Catherine was thirty-two years old, Chester III submitted samples from Catherine and himself to two separate laboratories for DNA testing.² The test results from each of the two laboratories conclusively excluded Chester III as Catherine's biological father. There is no evidence in the record that anyone ever informed Eleanor about the results of the DNA testing. In any event, after the testing was completed, Eleanor did not make any amendments to her trust indicative of an intention to exclude Catherine as a beneficiary. Chester Jr. had died in 1995, before the DNA testing occurred.

C. The Trustees' Action

Eleanor died in 2005, six years after Chester III received the test results concluding that he was not Catherine's biological father. In 2006, the Trustees filed an action against Catherine and the settlors' three other grandchildren under section 737.201, Florida Statutes (2005), seeking an order determining whether Catherine was a beneficiary of the Chester P. Doe, Jr., Marital Trust and the Eleanor Warren Doe Revocable Trust. Relying on the 1999 DNA test results and Article XVIII of the trusts, the Trustees alleged that Catherine "is not a descendant by blood of [Chester P. Doe, Jr.] or [Eleanor Warren Doe], and is, therefore, not a beneficiary of either the Marital Trust or the [Eleanor Warren] Trust with respect to the class gifts to `grandchildren' of the settlors of those trusts, respectively." Catherine filed an answer to the Trustees' complaint and raised various affirmative defenses. Defaults were entered against the settlors' three other grandchildren, and they did not participate in the litigation.

After the case was at issue, the Trustees and Catherine filed cross-motions for summary judgment. Catherine successfully raised chain-of-custody issues concerning the 1999 test results, and the circuit court initially denied both summary judgment motions. Afterward, the Trustees moved for an order directing Catherine to submit to DNA testing under Florida Rule of Civil Procedure 1.360(a). The circuit court granted this motion over Catherine's objection and ordered her to submit a buccal swab sample for testing.³ Like the 1999 DNA tests, the court-ordered DNA testing conclusively excluded Chester III as Catherine's biological father.

D. The Circuit Court's Ruling

Upon receipt of the results of the court-ordered DNA testing, the parties renewed their motions for summary judgment. The circuit court granted the Trustees' motion, ruling as follows:

[T]he provision in Article XVIII of both [of the trusts], reading, "[f]or all purposes hereunder, in determining whether any person is a child or descendant, only children and descendants by blood shall be included," is unambiguous and means that only descendants of the settlors by lineal consanguinity are beneficiaries under the terms of the trust; and the Court further finds no genuine issue as to the material fact that [Catherine] is not the biological child of [Chester III], the son of [Chester Jr.] and [Eleanor], that she is therefore not a descendant by blood of [Chester Jr.] and [Eleanor], and therefore has no beneficial interest in either of the trusts referred to above....

Catherine filed a motion for rehearing, and the circuit court denied the motion. This appeal followed.

II. THE STANDARD OF REVIEW

"Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Here, the only issue before the circuit court was whether — on the undisputed facts — Article XVIII of the trusts excluded Catherine as a beneficiary of the trusts' class gifts. The parties filed cross-motions for summary judgment on this single issue. The circuit court's ruling on the proper interpretation of Article XVIII of the trusts is a question of law subject to de novo review. See Fleck-Rubin v. Fleck, 933 So.2d 38, 39 (Fla. 2d DCA 2006); Roberts v. Sarros, 920 So.2d 193, 194-95 (Fla. 2d DCA 2006); Brown v. Miller, 2 So.3d 321, 323-24 (Fla. 5th DCA 2008).

III. DISCUSSION

A. Introduction: Catherine's Legitimacy

Catherine was born while Chester III was married to her mother. In addition, Chester III acknowledged his paternity of Catherine and agreed to pay support for her in a marital settlement agreement. The final judgment dissolving the marriage of Chester III and Catherine's mother approved and incorporated by reference the marital settlement agreement. Under these circumstances, Catherine is indisputably the legitimate child of Chester III. See D.F. v. Dep't of Revenue ex rel. L.F., 823 So.2d 97, 100 (Fla.2002) ("[A] final judgment of dissolution...