Pippin v. Pippin

• Court: Missouri Court of Appeals
• Writing for the Court: Phillip R. Garrison
• Citation: Pippin v. Pippin, 154 S.W.3d 376 (Mo. App. 2004)
• Decision Date: 02 December 2004
• Docket Number: No. 26101.,26101.
• Parties: Karen D. PIPPIN, Plaintiff-Appellant, v. Kenneth D. PIPPIN, Defendant/Counter-Claimant-Respondent, v. Karen D. Pippin, Trustee, Third-Party Defendant-Cross-Claimant.

154 S.W.3d 376

Karen D. PIPPIN, Plaintiff-Appellant, v. Kenneth D. PIPPIN, Defendant/Counter-Claimant-Respondent, v. Karen D. Pippin, Trustee, Third-Party Defendant-Cross-Claimant.

No. 26101.

Missouri Court of Appeals, Southern District, Division One.

December 2, 2004.

Motion for Rehearing or Transfer Denied December 27, 2004.

Application for Transfer Denied March 1, 2005.

Paul D. Link, Tina G. Fowler, Lathrop & Gage, L.C., Springfield, for appellant.

Richard L. Schnake, Daniel K. Wooten, Neale & Newman, L.L.P., Springfield, for respondent.

PHILLIP R. GARRISON, Presiding Judge.

The Circuit Court of Barry County ("trial court") found that a beneficiary deed executed by Karen D. Pippin ("Appellant") and Charles K. Pippin ("Decedent") on November 21, 2000, was effective to convey a life estate in certain real property ("property") to Appellant and a remainder in fee simple to Kenneth D. Pippin ("Respondent"). We reverse and remand.

Appellant and Decedent were married in 1991 and divorced in 1995. Respondent is Decedent's son by a previous marriage. Appellant and Decedent executed a "Family Trust," (hereafter called "Family Trust") in March 1995, naming themselves as trustees, and providing that it was revocable by both or either of the trustees. The Family Trust also contained a "Surviving Spouse's Trust" (hereafter called "Appellant's Trust") which, as the name implies, was to be for the benefit of the survivor of them. The Family Trust also provided that upon the death of the first spouse (in this case Decedent), the trustee was to "allocate the trust estate to the Surviving Spouse's Trust," which in the context of this case would be Appellant's Trust. It also provided that "[a]fter the allocation of the trust estate, the surviving spouse may revoke and amend the Surviving Spouse's Trust" [Appellant's Trust].

The property in question here was apparently conveyed to the Family Trust because in December 1995, as a part of the dissolution of Appellant and Decedent's marriage, they, as trustees of the Family Trust, conveyed the property to Decedent as a single person. Appellant and Decedent remarried in 1997 and resumed living together on the property, though it remained titled in Decedent's name alone.

The trial court made findings, uncontested on this appeal, that the following events occurred on November 21, 2000:

(1) Appellant and Decedent executed a document titled "Beneficiary Deed" which, by its terms, conveyed the property from "Grantors: [Decedent] and [Appellant]" to "[Appellant] for and during her natural life, and upon her death unto [Respondent], his heirs and assigns, forever." The beneficiary deed also contained the following language:

"THIS BENEFICARY DEED is executed pursuant to Section 461.025 RSMo Supplement 1989. It is not effective to convey title to the above described real estate until Grantors, [Decedent] and [Appellant's] death. This deed will not become effective unless recorded before Grantors [Decedent] and [Appellant's] death, and it is subject to revocation and change in the manner provided by law."

This deed was recorded the following day, on November 22, 2000.

(2) Decedent and Appellant executed a revocable trust for the benefit of Respondent, ("Respondent's Trust") naming Appellant as trustee, and providing that it would be funded by the proceeds of a $125,000 life insurance policy on Decedent's life. It also provided that "[t]he Grantor may from time to time by instrument signed, acknowledged and delivered to Trustee, modify or revoke in whole or in part this agreement or the Trust hereby created."

(3) Decedent and Appellant also executed an amendment to the Family Trust which stated that it was for the purpose of amending the distribution of the trust estate upon the death of Decedent. It provided that upon Decedent's death, the trustee was to allocate from the trust estate $125,000 from a life insurance policy on Decedent to Respondent's Trust, with the remaining assets allocated to Appellant's Trust, except that upon the death of the surviving spouse (here, that would be Appellant), the trustee was to distribute the property to Respondent. The amendment also contained the following:

We, [Decedent] and [Appellant], Settlors, hereby ratify and affirm all the other provisions of our [Family Trust] non [sic] inconsistent with this amendment and except as modified and amended by this instrument. We further reserve unto ourselves the right to further revoke, change, amend or modify our [Family Trust].

Decedent died on July 4, 2001. This litigation began when Appellant filed suit against Respondent seeking to replevy an automobile. In a counterclaim, Respondent alleged the execution of the Beneficiary Deed which conveyed to him a remainder interest in the property subject to Appellant's life estate; that Appellant had demanded that he convey all of his remainder interest in the property, threatening that if he did not, she would not fund his trust with the $125,000 life insurance proceeds and would revoke the provisions of his trust calling for its funding; and that pursuant to Section 461.033,¹ Appellant was without power to revoke or change the beneficiary designation in the Beneficiary Deed because Decedent and not Appellant was the "owner" of the property.² Respondent prayed in the counterclaim for a declaration that the Beneficiary Deed is valid; that Appellant has a life estate in the property by reason of the Beneficiary Deed and he has a remainder interest; and that Appellant cannot revoke his beneficiary interest in the property.

Appellant filed a "Third Party Cross-Claim" against Respondent in which she alleged, inter alia, that the Beneficiary Deed did not comply with the provisions of Section 461.025, which requires that the deed take effect on the death of the owner. She sought a declaration that the Beneficiary Deed was invalid.

On May 9, 2002, Appellant moved for summary judgment claiming that the beneficiary deed was invalid, and that she was entitled to a judgment concluding that the property should pass under Decedent's will.³ On October 7, 2002, Respondent filed a motion for summary judgment contending that the beneficiary deed was valid and that he was entitled to a judgment declaring that Appellant received a life estate in that property, and that he had the remainder interest. The trial court granted summary judgment in favor of Respondent, finding that Respondent was entitled to judgment as a matter of law because the beneficiary deed was valid and that Appellant had a life estate in the property with Respondent holding the remainder interest. The trial court did not address whether the property passed under Decedent's will, finding the point moot because of its decision as to the beneficiary deed. This appeal followed.

Our review of an appeal from the trial court's granting a motion for summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). "The propriety of summary judgment is purely an issue of law." Id."[A]n appellate court need not defer to the trial court's order granting summary judgment." Id. Summary judgment is proper when there is no genuine issue of material facts, and the moving party is entitled to a judgment as a matter of law. First Nat'l Bank of Annapolis, N.A. v. Jefferson Ins. Co. of New York, 891 S.W.2d 140, 142 (Mo.App. S.D.1995). "When considering appeals from summary judgments, the [appellate court] will review the record in the light most favorable to the party against whom judgment was entered." ITT Commercial Fin. Corp., 854 S.W.2d at 376. This case requires us to answer a question purely of law.

Appellant presents two points on appeal. In her first point, Appellant claims the trial court erred in granting summary judgment by erroneously applying or declaring the law when it found the beneficiary deed to be valid under Section 461.025. She claims that, by its own terms, the deed failed to transfer the property upon the death of the owner (Decedent) as provided in Section 461.025. She points to the fact that the deed states "[i]t is not effective to convey title ... until Grantors, [Decedent] and [Appellant's] death." Appellant argues that according to the language of the deed, it does not convey the property to anyone until the death of Appellant, keeping title to the property in limbo. Furthermore, she claims that the deed cannot be reformed.

Respondent argues that Appellant is estopped from denying the validity of the deed because she was both a grantor and a grantee under the deed. He also claims that it is impermissible to challenge the validity of the deed on the grounds that it does not comply with the statute. In the alternative, he argues, the deed meets the statutory requirements for a beneficiary deed under Section 461.025 and that Appellant is misreading those requirements.

Respondent's estoppel argument is not well taken as he did not include it in his original pleadings as an affirmative defense or as part of his counter-claims. He only raised it in his motion for summary judgment, suggestions in support of his motion for summary judgment, and his response to Appellant's motion for summary judgment. See Contemporary Management, Inc. v. 1007 Olive Partnership, 760 S.W.2d 135, 138-139 (Mo.App. E.D.1988) (finding that where a party only raised an estoppel argument in a motion for summary judgment and in proposed findings of fact and conclusions of law, estoppel was not pled and therefore could not be raised on appeal).

The legislature created beneficiary deeds when it enacted the Nonprobate Transfers Law of Missouri in 1989. Sections 461.003-461.081, RSMo Cum.Supp. (1989). Both parties agree that the trial court applied the incorrect version of Section 461.025.1. Here, the trial court applied the pre-1995 amendments language of Section 461.025, authorizing beneficiary deeds, instead of the statute as it read at the...