In re Hirsch
Decision Date | 16 July 2009 |
Docket Number | No. 20080209.,20080209. |
Citation | 2009 ND 135,770 N.W.2d 225 |
Parties | In the Matter of the Emelia HIRSCH, June 9, 1994, Irrevocable Trust Timothy Betz, Appellant v. Emelia A. Hirsch, aka Emelia Hirsch, aka Emilia Hirsch, Carolyn Twite and Duane Hirsch, Appellees. |
Court | North Dakota Supreme Court |
Theresa L. Cole, American Legal Services, P.C., Bismarck, N.D., for appellant.
Sheldon A. Smith, Smith Bakke Porsborg & Schweigert, Bismarck, N.D., for appellee Emelia A. Hirsch.
Richard B. Baer (appeared), Richard B. Baer, P.C., Bismarck, N.D., for appellees Carolyn Twite and Duane Hirsch.
[¶ 1] Timothy Betz appealed from a district court order reforming a trust. Because we do not consider issues raised for the first time on appeal, we affirm the district court's order. We decline, however, to award attorney fees or costs under N.D.R.App.P. 38 for a frivolous appeal.
[¶ 2] In 1994, the "Emelia Hirsch June 9, 1994, Irrevocable Trust" was created, and Emelia Hirsch transferred assets to the trust. The stated purpose of the trust was "to supplement any benefits received (or for which Settlors may be or become eligible) through or from various governmental assistance programs and not to supplant any such benefits." The beneficiaries of the trust were Emelia Hirsch's three children, Carolyn Twite, Marlene Betz, and Duane Hirsch, and her ten grandchildren, including Timothy Betz. The trust named Carolyn Twite and Duane Hirsch as co-trustees. When disputes subsequently arose over the administration of the trust, Marlene Betz was added as a third co-trustee. Ultimately, the children were removed as trustees, and the court appointed professionals to act as trustees.
[¶ 3] The trust has become the source of protracted litigation and has caused a rift between two factions within the family. Emelia Hirsch, Carolyn Twite and her children, and Duane Hirsch and his children contend that Emelia Hirsch did not understand the terms of the irrevocable trust and that she never intended to give up control of her property during her lifetime. Marlene Betz and her children contend that the original trust is irrevocable and that they are entitled to benefits under the terms of the trust.
[¶ 4] In an affidavit, Emelia Hirsch explained her intent in creating the trust:
The attorney who drafted the trust was ultimately disciplined for failing to adequately explain the provisions and effect of the trust to Emelia Hirsch. See In re Secrest, 2004 ND 180, 687 N.W.2d 251.
[¶ 5] In 2003, Emelia Hirsch petitioned the district court for dissolution of the trust. Several years of litigation followed, with the Betzes displaying an unwillingness to follow appropriate court procedures. Rather than filing appropriate pleadings, Marlene Betz and Timothy Betz on multiple occasions wrote letters directly to the district court judge and were repeatedly cautioned by court staff that ex parte communications with the court were improper. For example, in response to a letter to the judge from Timothy Betz, a court staff member wrote:
Despite this and similar admonitions, the Betzes continued to ignore proper court procedures.
[¶ 6] On April 17, 2008, Carolyn Twite and Duane Hirsch moved to reform the trust from an irrevocable trust to a revocable trust, thereby restoring control to Emelia Hirsch and attempting to avoid serious tax consequences which had been identified with the irrevocable trust. In the alternative, they moved to divide the trust into two separate trusts, effectively splitting the property between the Twite/ Hirsch and Betz factions of the family. Marlene Betz responded to the motion with a long and rambling letter addressed to the judge, the parties and their attorneys. Timothy Betz did not respond to the motion.
[¶ 7] A hearing on the motion was held on May 2, 2008. Timothy Betz and Marlene Betz did not appear and were not represented by counsel. In a colloquy with Emelia Hirsch's attorney during the hearing, the court noted that Marlene Betz's letter was not a proper pleading:
[¶ 8] The court granted the motion to reform the trust, but directed Emelia Hirsch's attorney to draft a proposed reformed trust and send copies to the court and counsel for comment. The court further required that copies be provided to each beneficiary, with an opportunity for them to comment or object to the proposed reformation of the trust. The court expressly directed Emelia Hirsch's attorney to include in the notice to the beneficiaries language indicating that they must file any objections with the court and serve it upon counsel within ten days, that any objection must be in the form of a pleading and that correspondence or faxed letters would not be acceptable. Emelia Hirsch drafted a proposed revised trust and served copies on the beneficiaries. Included with the proposed revised trust was a written notice which, in accordance with the court's instructions, included the following directive:
Marlene Betz again responded with a letter to the court and counsel. Timothy Betz did not respond.
[¶ 9] On July 16, 2008, the district court entered its order reforming the trust and approving the proposed revised trust. Timothy Betz appealed, alleging that there was not clear and convincing evidence Emelia Hirsch's intent and the terms of the trust were affected by a mistake of fact or law and that the district court erred in granting reformation of the trust. Emelia Hirsch, Carolyn Twite and Duane Hirsch contend the appeal is frivolous and seek an award of attorney fees and single or double costs for the appeal.
[¶ 10] Timothy Betz argues that there was not clear and convincing evidence Emelia Hirsch's intent and the terms of the trust were affected by a mistake of fact or law and that the district court erred in granting "rescission/termination" of the trust.
[¶ 11] Carolyn Twite and Duane Hirsch filed their motion for reformation of the trust on April 17, 2008. Timothy Betz did not file a responsive pleading to the motion, did not appear personally or through counsel at the hearing on the motion and did not present any evidence or argument in opposition to the motion. He did not...
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... ... The question of the ultimate running of the applicable statute of limitations is not needed to resolve this appeal ... ¶ 54 Further, this Court only considers issues properly presented to the trial court. In re Hirsch, 2009 ND 135, ¶ 12, 770 N.W.2d 225 ("It is axiomatic that an issue or contention not raised or considered in the lower court cannot be raised for the first time on appeal."). If a party fails to properly raise or argue issues in the trial court, that party is precluded from raising the argument ... ...
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McNamara v. Feist (In re Estate of Harms)
... ... We only consider issues that were first presented to the district court, and, if a party fails to properly raise an issue or argument before the [814 N.W.2d 789] district court, the party is precluded from raising that issue or argument on appeal. Matter of Hirsch Trust, 2009 ND 135, 12, 770 N.W.2d 225 (quotation and internal citation omitted). Because the question of whether the amended notice of proposed distribution was a family settlement agreement has not been raised before, we will not consider the issue on appeal. III [ 14] William McNamara argues ... ...
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