Amy Jean Kristoff v. Centier Bank

985 N.E.2d 20, 2013 WL 587477, 2013 Ind. App. LEXIS 70
CourtIndiana Court of Appeals
DecidedFebruary 15, 2013
Docket45A03-1204-TR-186
StatusPublished
Cited by3 cases

This text of 985 N.E.2d 20 (Amy Jean Kristoff v. Centier Bank) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amy Jean Kristoff v. Centier Bank, 985 N.E.2d 20, 2013 WL 587477, 2013 Ind. App. LEXIS 70 (Ind. Ct. App. 2013).

Opinion

OPINION

MATHIAS, Judge.

Amy Jean Kristoff (“Amy”) appeals the Lake Circuit Court’s grant of summary judgment in favor of Centier Bank (“the Bank”), the trustee of the Amy Jean Kris-toff Exempt Trust, in Amy’s action to modify the terms of a trust established by her late mother.

We affirm.

Facts and Procedural History

The essential facts of this case are undisputed. On October 4, 1985, Sally Jean Kristoff (“Sally”) executed a trust document establishing a trust known as the Sally Jean Kristoff Trust. The trust document was amended in 1988 to its present form. Sally was the settlor and the initial trustee of the Trust. Sally had two daughters: Amy and Laurie Ann Kristoff (“Laurie”). On May 8, 2000, twelve years after the amendment of the trust document, Sally died, leaving an estate worth approximately $17,000,000.

The trust documents provided that, upon Sally’s death, two separate trusts would be created for her daughters, with each trust funded with an amount equal to the then-existing generation skipping tax exemption: 1

6. As of the date of my death, the GST [Generation Skipping Tax] Exempt Share created above shall be divided and allocated per stirpes among my then living descendants, and property so allocated to a descendant of mine shall be retained in trust as a separate exemption trust named for that descendant of mine and any other exemption trusts created under the following provisions of this paragraph shall be held and disposed of as follows:
(a) The trustee may pay to or apply for the benefit of a beneficiary for whom an exemption trust is named such amounts of the income and principal of the trust as the trustee, in the trustee’s sole discretion, from time to time believes desirable and so directs for the comfortable maintenance, health, education and welfare of the beneficiary and his or her dependents.
(b) If a beneficiary for whom an exemption trust is named dies before the complete distribution of that exemption trust, then on the death of such beneficiary any part or all of the principal of the exemption trust and *22 the accrued or undistributed income thereof shall be distributed to or for the benefit of such one or more persons or organizations in such proportions and subject to such trusts, powers and conditions as such beneficiary may provide and appoint by will specifically referring to this power to appoint, except that no beneficiary shall have the power to appoint an exemption trust to or for the benefit of such beneficiary, his or her estate or the creditors of either.
(c) On the death of a beneficiary for whom an exemption trust is named, any principal of the exemption trust not effectively disposed of by any other provisions of this paragraph shall be divided and allocated per stirpes among the then living descendants of the beneficiary, if any, otherwise per stirpes among the then living descendants of the nearest lineal ancestor of the beneficiary who also was a descendant of mine and of whom one or more descendants then are living, or, if non, per stirpes among my then living descendants. Property so allocated to a beneficiary for whom an exemption trust is named shall be added to that exemption trust, and property so allocated to any other beneficiary shall be retained in trust as a separate exemption trust named for him or her and disposed of as provided in this paragraph 6.

Appellant’s App. pp. 19-20. The Bank is' currently the trustee of the trusts created by Sally.

Neither of Sally’s daughters has had any children. After the creation of the trust, Amy received regular distributions from the trust upon her request and at the discretion of the trustee. She admitted, however, that she had never been denied any of her requests.

Amy filed a petition to terminate the trust on November 12, 2010. In her petition, Amy argued that the purpose of the trust was to benefit Sally’s grandchildren, that no such grandchildren existed or would exist, that these circumstances were not foreseen by the settlor, and that the continuing existence of the trust was impractical and wasteful. The Bank subsequently filed a motion for summary judgment on October 3, 2011. After receiving an extension of time, Amy responded to the summary judgment motion on December 1, 2011. A summary judgment hearing was held on January 19, 2012, after which the trial court took the matter under advisement. The trial court issued an order on March 23, 2012, granting summary judgment in favor of the Bank and denying Amy’s request to terminate the trust. Amy now appeals.

Standard of Review

Our standard for reviewing a trial court’s order granting a motion for summary judgment is well settled:

A trial court should grant a motion for summary judgment only when the evidence shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The trial court’s grant of a motion for summary judgment comes to us cloaked with a presumption of validity. An appellate court reviewing a trial court summary judgment ruling likewise construes all facts and reasonable inferences in favor of the non-moving party and determines whether the moving party has shown from the designated evidentiary matter that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. But a de novo standard of review applies where the dispute is one of law rather than fact. We examine only those materials *23 designated to the trial court on the motion for summary judgment.... Although we are not bound by the trial court’s findings and conclusions, they aid our review by providing reasons for the trial court’s decision. We must affirm the trial court’s entry of summary judgment if it can be sustained on any theory or basis in the record.

Altevogt v. Brand, 963 N.E.2d 1146, 1150 (Ind.Ct.App.2012) (citations omitted).

Discussion and Decision

Amy first contends that the trial court erred in granting summary judgment in favor of the Bank because there was a genuine issue of material fact regarding whether the Bank was the trustee of the generation-skipping tax exempt . trust, or of a primary trust that was also created by Sally for the benefit of Amy.

We note, however, that Amy’s own petition to terminate the trust claimed that the Bank was trustee of the “Amy Jean Kris-toff Exempt Trust[.]” Appellant’s App. p. 14. Amy’s response in opposition to the Bank’s motion for summary judgment similarly noted that “the trust at issue” in this case was “the Amy Jean Kristoff Exempt Trust[.]” Id. at 96. In fact, at no point before the trial court did Amy claim that another trust was at issue or that the Bank was not the trustee. This issue cannot be presented on appeal for the first time. See T.S. v. Logansport State Hosp., 959 N.E.2d 855

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985 N.E.2d 20, 2013 WL 587477, 2013 Ind. App. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amy-jean-kristoff-v-centier-bank-indctapp-2013.