In re Petition To Docket Trust of Swingle, 030321 INCA, 20A-TR-1585
| Opinion Judge | Vaidik, Judge. |
| Party Name | In re: Petition to Docket Trust of Arthur Louis Swingle and Partha Lou Swingle v. David Swingle and Diana Jeffries, Appellees-Petitioners Duane A. Swingle, Appellant-Respondent, |
| Attorney | Attorney for Appellant Michael T. Foster Greensburg, Indiana Attorney for Appellees R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana |
| Judge Panel | Brown, J., and Pyle, J., concur. |
| Case Date | March 03, 2021 |
| Court | Indiana Appellate Court |
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
Appeal from the Ripley Circuit Court Trial Court Cause No. 69C01-1901-TR-1 The Honorable Jeffrey Sharp, Special Judge
Attorney for Appellant Michael T. Foster Greensburg, Indiana
Attorney for Appellees R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana
MEMORANDUM DECISION
Vaidik, Judge.
Case Summary
[¶1] Duane Swingle appeals the trial court's grant of summary judgment to David Swingle and Diana Jeffries in this dispute relating to a trust established by the parties' parents. We affirm.
Facts and Procedural History
[¶2] Duane, David, and Diana are the children of Arthur and Partha Swingle. In October 2009, Arthur and Partha executed the Revocable Living Trust Agreement of Arthur Louis Swingle and Partha Lou Swingle ("the Trust"), naming themselves as the settlors, trustees, and primary beneficiaries and Duane, David, and Diana as beneficiaries upon death. Section 2.01 of the Trust establishes how the Trust can be revoked or modified by the settlors: The Settlors reserve the right at any time, and from time to time, without the consent of any person or without notice to any person other than the Trustees, to revoke or modify the Trust hereby created in whole or in part, to change the beneficiaries hereof, or to withdraw the whole or any part of the Trust Estate, by filing notice of such revocation, modification, change or withdrawal with the Trustees; provided, however, that the terms of this Agreement may not be modified by the Settlors in such manner as to increase the obligations of the Trustees without the Trustees' written consent.
Appellant's App. Vol. II pp. 49-50.
[¶3] Partha's mother died in October 2014, and Partha inherited an interest in a piece of real estate in Versailles. That interest, worth approximately $250, 000, became the largest asset in the Trust. In May 2015, Partha was suffering from dementia, and David and Diana petitioned for the appointment of a guardian of her estate. Arthur and Partha objected. After extensive litigation, Partha was declared incapacitated in August 2016, and Sentry Services was appointed guardian of her estate.
[¶4] In August 2017, Arthur executed the Arthur L. Swingle Living Trust Restatement ("the Restatement"), naming himself trust-maker and Duane trustee. The Restatement purported to amend the Trust by disinheriting David and Diana as follows: My beloved wife, Partha L. Swingle, is in poor state of physical health at the time of making this trust, plus she has the onset of Alzheimer[']s/dementia. It is presumed that she will not out live me, nor will be able to enjoy the assets we acquired during our marriage. Accordingly, I make no provision for her in the trust. I intentionally make no provisions for my children, David Swingle and Dianna Jeffries, as they chose to initiate legal action against Partha L. Swingle and me in relation to a guardianship over Partha L. Swingle, trying to exert control over assets that were not theirs to control. Further I have left to them a lifetime of gifts made from both Partha L....
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