Fil ED El — 7: L!7
2 ER QURT 3 H
6 IN THE SUPERIOR COURT OF GUAM
7 CARLINE BELLO BUKIKOSA and BELLA ) Case No. CV0408-17 8 BELLO MARTINEZ,
Plaintiffs, V. ) DECISION AND ORDER ) 11 ) BENNY BENAVENTE BELLO, JOSEPHINE 12 BELLO-DUENAS, GEORGE BENAVENTE ) 13 BELLO, BELLO ENTERPRISES, BELLO ) FAMILY L.LC., BELLO HOSPITALITY ) 14 GROUP, and DOES IV through XV, 15 Defendants. ) ) 16
17 INTRODUCTION 18 This matter came before the Honorable Alberto C. Lamorena, III on November 18, 2019 19 for hearing on Defendants Benny Benavente Bello (“Benny”), Josephine Bello-Duenas 20
21 (“Josephine”), and George Benavente Bello (“George”) (“Defendants”)’s Petition of Trustees
22 for Authorization of Power to Sell a Real Property Trust Asset (“Petition”). Attorney Carlos L.
23 Taitano represents Canine Bello Bukikosa (“Canine”) and Bella Bello Martinez (“Bella”). 24 Attorney Daniel J. Berman represents Benny. Attorney Philip Torres represents George and
Bello Hospitality Group (“Bello Hospitality”). Attorney Jeffrey A. Cook represents Bello
27 Enterprises and Bello Family L.L.C. Attorney Jon A. Visosky represents Josephine. Having
28 Decision and Order CV0408-17, Bukikosa eta!. u. Belto et al.
duly considered the parties’ briefs, oral arguments, and the applicable law, the Court now issues 1
2 the following Decision and Order and DENIES Defendants’ Petition.
3 BACKGROUND
On September 4, 2019, Defendants filed their Petition. Defendants ask for authorization 5 to sell Lot 154-2-1, Umatac, Guam. and Lot 154-R2-1, Umatac, Guam, held in the Bello Family 6 Trust. Petition at 3. Specifically, Defendants ask the Court to confer upon them the power to
8 sell the lots pursuant to 15 G.C.A. § 3305. Id. at 4. Plaintiffs oppose, arguing (1) the Court does
not have the power to authorize the sale under the cited statute and (2) Defendants failed to 10 satisfy Civil Rule 7.1. Plaintiff’s Objections or Opposition to Defendants Petition of Trustees 11 for Authorization of Power to Sell a Real Property Trust Asset (“Opposition”) at 2-6 (Nov. 14, 12
13 2019). Defendants reply, arguing the Court has jurisdiction to consider the Petition and that
14 Civil Rule 7.1 was satisfied. Trustees’ Reply Memorandum to Objections Re: Petition for
Authorization to Sell Real property Trust Assets (“Reply”) at 2-7 (Nov. 18, 2019). After hearing 16 the arguments of the parties on November 18, 2019, the Court took the matter under 17 advisement. 18
19 DISCUSSION
20 A. Defendant’s failed to satisfy the requirements under CYR 7.1.
- Plaintiffs contend that Defendants failed to comply with Civil Rule 7.1 in failing to file a 77
CVR 7.1 Form 1 with their Petition. Opposition at 6. Defendants respond by arguing that Civil 23 Rule 7.1 was satisfied because the Petition was accompanied by the Ex Parte Motion which 24
25 included CVR 7.1 form 1. Reply at 7. A review of the record indicates Defendants failed to
26 comply with Civil Rule 7.1. 27 / 28
Page 2 of7 Decision and Order a CVO4O8-17, Bukikosa et at. i’. Belto et at. a Defendants’ Petition was filed on September 4, 2019. The only other documents filed
2 on September 4, 2019 were the Declaration of Petitioner Benny Benavente Bello’s Counsel Re:
3 Petition for Authorization of Power to Sell a Real Property Trust Asset and the [Proposed]
Order Authorizing Power to Sell a Real Property Trust Asset. A CVR 7.1 Form 1 was not filed 5 on September 4, 2019. Defendants then filed their Ex Farte Motion on September 20, 2019. 6 This Ex Parte Motion was filed alongside a CVR 7.1 Form 1. In short, Defendants’ Petition
was not filed with a CVR 7.1 Form 1. Defendants’ argument that the Petition was accompanied
by the Ex Pane Motion on September 4, 2019 is incorrect, as the Petition and the Ex Parte 10 Motion were filed sixteen (16) days apart. 11 Although Civil Rule 7.1 was not satisfied, the Court will entertain Defendant’s Petition 12
13 in the name of judicial economy. However, Defendants are admonished that failure to comply
14 with Civil Rule 7.1 can result in motions and petitions filed with the Court to “not be 15 considered” in this Court. Civil Rule 7.1(f). 16 B. The Court does not have the power to authorize the actions requested. 17 Defendants assert the Court has the authority to confer the power to sell trust assets to
19 Defendants pursuant to 15 G.C.A. § 3305. Petition at 4. Plaintiffs oppose, arguing that because
20 the Bello Family Trust is an inter vivos trust, the Court lacks jurisdiction under Defendants’ 21 cited statute to authorize such a sale. Opposition at 2-4. Defendants reply on three grounds: (1) 22 the Court can authorize the sale pursuant to its general jurisdiction and equity powers; (2) the 23 Bello Family Trust is a pour-over testamentary trust, not an inter vivos trust, thus making 15 24
25 G.C.A. § 3305 the proper channel for the sale; and (3) the Bello Family Trust grants the power
26 to dispose of trust property to the trustees. Reply at 2-6. The Court finds that it lacks the power
under to authorize the sale for which Defendants petitioned.
Page 3 of 7 Decision and Order CV0408-17, Bukikosa et at. v. Betto et al.
1. The Bello Family Trust is an inter vivos trust. 1
2 Defendants contend that the Bello Family Trust was created as a testamentary trust
3 rather than an inter vivos trust. Specifically, Defendants argue that because the Bello Family
Trust “could not be considered a previous Inter Vivos trust for lack of a thing or res prior to the 5 Superior Court’s grant of its Final Decree and Distribution of assets from the Estate of Dolores 6 Bello to Trust.” Reply at 4. Plaintiffs argue that the settlors of the trust, Dolores Benavente
$ Bello and Jose Benavente Bello, created the trust during their lifetimes, making the trust an inter
vivos trust. Opposition at 4. The record and the Probate Court’s findings in PRO 142-11 indicate 10 that the Bello Family Trust is an inter vivos trust. 11 In PRO 142-11, the Probate Court determined that the Bello family Trust is an inter vivos 12
13 trust: “That Article Fourth of Decedent’s Will makes reference to that certain Inter Vivos Trust
14 created immediately prior to the execution of the Will, executed by Decedent and her 15 predeceased husband, Jose B. Bello, as Settlors, and therein designated as the Bello Family 16 Trust . . . .“ In the Matter of the Estate of Belto, PRO 142-11, Decree of Final Distribution at 2 17 (Mar. 23, 2015) (emphasis in original). While the issue does not appear to have been raised in
19 the probate proceedings, the Probate Court’s finding that the Bello Family Trust was an inter
20 vivos trust was proper and necessary under statute: “In its order or decree of final distribution, 21 the Superior Court must name the persons and the proportions or parts to which each is entitled.
.“ 15 G.C.A. § 3013. As such, “it was the duty of the probate court to interpret the will and 23 determine whether the intervivos trust agreement was part of the will.” Welts Fargo Bank & 24
25 Union Tr. Co. v. Superior Court, 193 P.2d 721, 725 (Cal. 194$). Such a finding is necessary for
26 the Probate Court to make a proper final distribution. 27 / 28
Page 4 of 7 Decision and Order e CV0408-17, Bukikosa et at. v. Betto et at. . The Court finds no compelling reason to disturb the Probate Court’s finding. If
2 Defendants believe the Probate Court erred in its finding that the Bello Family Trust is an inter
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Fil ED El — 7: L!7
2 ER QURT 3 H
6 IN THE SUPERIOR COURT OF GUAM
7 CARLINE BELLO BUKIKOSA and BELLA ) Case No. CV0408-17 8 BELLO MARTINEZ,
Plaintiffs, V. ) DECISION AND ORDER ) 11 ) BENNY BENAVENTE BELLO, JOSEPHINE 12 BELLO-DUENAS, GEORGE BENAVENTE ) 13 BELLO, BELLO ENTERPRISES, BELLO ) FAMILY L.LC., BELLO HOSPITALITY ) 14 GROUP, and DOES IV through XV, 15 Defendants. ) ) 16
17 INTRODUCTION 18 This matter came before the Honorable Alberto C. Lamorena, III on November 18, 2019 19 for hearing on Defendants Benny Benavente Bello (“Benny”), Josephine Bello-Duenas 20
21 (“Josephine”), and George Benavente Bello (“George”) (“Defendants”)’s Petition of Trustees
22 for Authorization of Power to Sell a Real Property Trust Asset (“Petition”). Attorney Carlos L.
23 Taitano represents Canine Bello Bukikosa (“Canine”) and Bella Bello Martinez (“Bella”). 24 Attorney Daniel J. Berman represents Benny. Attorney Philip Torres represents George and
Bello Hospitality Group (“Bello Hospitality”). Attorney Jeffrey A. Cook represents Bello
27 Enterprises and Bello Family L.L.C. Attorney Jon A. Visosky represents Josephine. Having
28 Decision and Order CV0408-17, Bukikosa eta!. u. Belto et al.
duly considered the parties’ briefs, oral arguments, and the applicable law, the Court now issues 1
2 the following Decision and Order and DENIES Defendants’ Petition.
3 BACKGROUND
On September 4, 2019, Defendants filed their Petition. Defendants ask for authorization 5 to sell Lot 154-2-1, Umatac, Guam. and Lot 154-R2-1, Umatac, Guam, held in the Bello Family 6 Trust. Petition at 3. Specifically, Defendants ask the Court to confer upon them the power to
8 sell the lots pursuant to 15 G.C.A. § 3305. Id. at 4. Plaintiffs oppose, arguing (1) the Court does
not have the power to authorize the sale under the cited statute and (2) Defendants failed to 10 satisfy Civil Rule 7.1. Plaintiff’s Objections or Opposition to Defendants Petition of Trustees 11 for Authorization of Power to Sell a Real Property Trust Asset (“Opposition”) at 2-6 (Nov. 14, 12
13 2019). Defendants reply, arguing the Court has jurisdiction to consider the Petition and that
14 Civil Rule 7.1 was satisfied. Trustees’ Reply Memorandum to Objections Re: Petition for
Authorization to Sell Real property Trust Assets (“Reply”) at 2-7 (Nov. 18, 2019). After hearing 16 the arguments of the parties on November 18, 2019, the Court took the matter under 17 advisement. 18
19 DISCUSSION
20 A. Defendant’s failed to satisfy the requirements under CYR 7.1.
- Plaintiffs contend that Defendants failed to comply with Civil Rule 7.1 in failing to file a 77
CVR 7.1 Form 1 with their Petition. Opposition at 6. Defendants respond by arguing that Civil 23 Rule 7.1 was satisfied because the Petition was accompanied by the Ex Parte Motion which 24
25 included CVR 7.1 form 1. Reply at 7. A review of the record indicates Defendants failed to
26 comply with Civil Rule 7.1. 27 / 28
Page 2 of7 Decision and Order a CVO4O8-17, Bukikosa et at. i’. Belto et at. a Defendants’ Petition was filed on September 4, 2019. The only other documents filed
2 on September 4, 2019 were the Declaration of Petitioner Benny Benavente Bello’s Counsel Re:
3 Petition for Authorization of Power to Sell a Real Property Trust Asset and the [Proposed]
Order Authorizing Power to Sell a Real Property Trust Asset. A CVR 7.1 Form 1 was not filed 5 on September 4, 2019. Defendants then filed their Ex Farte Motion on September 20, 2019. 6 This Ex Parte Motion was filed alongside a CVR 7.1 Form 1. In short, Defendants’ Petition
was not filed with a CVR 7.1 Form 1. Defendants’ argument that the Petition was accompanied
by the Ex Pane Motion on September 4, 2019 is incorrect, as the Petition and the Ex Parte 10 Motion were filed sixteen (16) days apart. 11 Although Civil Rule 7.1 was not satisfied, the Court will entertain Defendant’s Petition 12
13 in the name of judicial economy. However, Defendants are admonished that failure to comply
14 with Civil Rule 7.1 can result in motions and petitions filed with the Court to “not be 15 considered” in this Court. Civil Rule 7.1(f). 16 B. The Court does not have the power to authorize the actions requested. 17 Defendants assert the Court has the authority to confer the power to sell trust assets to
19 Defendants pursuant to 15 G.C.A. § 3305. Petition at 4. Plaintiffs oppose, arguing that because
20 the Bello Family Trust is an inter vivos trust, the Court lacks jurisdiction under Defendants’ 21 cited statute to authorize such a sale. Opposition at 2-4. Defendants reply on three grounds: (1) 22 the Court can authorize the sale pursuant to its general jurisdiction and equity powers; (2) the 23 Bello Family Trust is a pour-over testamentary trust, not an inter vivos trust, thus making 15 24
25 G.C.A. § 3305 the proper channel for the sale; and (3) the Bello Family Trust grants the power
26 to dispose of trust property to the trustees. Reply at 2-6. The Court finds that it lacks the power
under to authorize the sale for which Defendants petitioned.
Page 3 of 7 Decision and Order CV0408-17, Bukikosa et at. v. Betto et al.
1. The Bello Family Trust is an inter vivos trust. 1
2 Defendants contend that the Bello Family Trust was created as a testamentary trust
3 rather than an inter vivos trust. Specifically, Defendants argue that because the Bello Family
Trust “could not be considered a previous Inter Vivos trust for lack of a thing or res prior to the 5 Superior Court’s grant of its Final Decree and Distribution of assets from the Estate of Dolores 6 Bello to Trust.” Reply at 4. Plaintiffs argue that the settlors of the trust, Dolores Benavente
$ Bello and Jose Benavente Bello, created the trust during their lifetimes, making the trust an inter
vivos trust. Opposition at 4. The record and the Probate Court’s findings in PRO 142-11 indicate 10 that the Bello Family Trust is an inter vivos trust. 11 In PRO 142-11, the Probate Court determined that the Bello family Trust is an inter vivos 12
13 trust: “That Article Fourth of Decedent’s Will makes reference to that certain Inter Vivos Trust
14 created immediately prior to the execution of the Will, executed by Decedent and her 15 predeceased husband, Jose B. Bello, as Settlors, and therein designated as the Bello Family 16 Trust . . . .“ In the Matter of the Estate of Belto, PRO 142-11, Decree of Final Distribution at 2 17 (Mar. 23, 2015) (emphasis in original). While the issue does not appear to have been raised in
19 the probate proceedings, the Probate Court’s finding that the Bello Family Trust was an inter
20 vivos trust was proper and necessary under statute: “In its order or decree of final distribution, 21 the Superior Court must name the persons and the proportions or parts to which each is entitled.
.“ 15 G.C.A. § 3013. As such, “it was the duty of the probate court to interpret the will and 23 determine whether the intervivos trust agreement was part of the will.” Welts Fargo Bank & 24
25 Union Tr. Co. v. Superior Court, 193 P.2d 721, 725 (Cal. 194$). Such a finding is necessary for
26 the Probate Court to make a proper final distribution. 27 / 28
Page 4 of 7 Decision and Order e CV0408-17, Bukikosa et at. v. Betto et at. . The Court finds no compelling reason to disturb the Probate Court’s finding. If
2 Defendants believe the Probate Court erred in its finding that the Bello Family Trust is an inter
3 vivos trust, the proper channel was to file for reconsideration of the Decree of Final Distribution
inPROl42-l1. 5 2. The Court’s power to authorize a sale under 15 G.C.A. § 3305 does not 6
7 apply to inter vivos trusts.
8 Defendants cite 15 G.C.A. § 3301 et seq. in support of their assertion that the Court
has the power to authorize the sale. This statute provides that “When a trttst created by ct wilt 10 continues after distribution, the Superior Court shall not lose jurisdiction of the estate by final
distribution, but shall retain jurisdiction for the purpose of determining to whom the property
13 shall pass . . . and for the other purposes hereinafter set forth.” 15 G.C.A. § 3301 (emphasis
14 added). Section 3305 lists the additional powers the Court may confer upon the trustee of such a 15 trust, such as the power to dispose and the power to sell. However, fatal to Defendants’ Petition 16 is the fact that the Probate Court in PRO 142-11 already found the Bello Family Trust to be an 17 inter vivos trust. 18
19 Therefore, because the Bello Family Trust is an inter vivos trust, the Court lacks
20 authority to confer the powers enumerated under 15 G.C.A. § 3305 to Defendants. “1 - 3. While the Court has jurisdiction to entertain the Petition, it does not have
the power to authorize the actions for which Defendants petition. 23 Defendants cite Wells Fargo Bank & Union Trust Co. v. Superior Coitrt, 193 P.2d 721 24
25 (Cal. 1948) for the proposition that the Court has jurisdiction to consider the present Petition.
26 Reply at 2. It is true that this Court has jurisdiction to consider the petition: “the probate court 27 was not the only court that could have jurisdiction to approve or disapprove the entire 28
PageS of7 Decision and Order CVO4O8-17, Bukikosa eta!. v. Bello et at.
transaction.” Wells Fargo, 193 P.2d at 727. However, the distinction to be made is whether the
2 Court has the authority to “approve or disapprove the entire transaction,” not simply whether the
3 appropriate court is the Probate Court or a court of general jurisdiction. Id. The former is what 4. . . . is at issue in this instance. As explained above, the Court does not have the authority to 5 “approve or disapprove the entire transaction” under Title 15. Id. 6
7 Defendants further raise the Court’s “broad equitable powers” as further support that the
$ Court has the authority to confer the power to sell the trust assets. Reply at 3. However,
Defendants’ Petition requests the Court to confer specific statutory power under Title 15 upon 10 the trustees. Defendants did not petition this Court to exercise equitable powers to authorize the 11 sale of the trust assets. Further, Defendants provide no argument as to how the Court can 12
authorize such a sale pursuant to equitable powers. To grant the power to sell the trust assets on
14 a basis other than that for which Defendants petitioned would be improper. 15 4. Article G of the Bello family Trust has no bearing on whether the Court has 16 the authority to authorize the sale of trust assets pursuant to 15 G.C.A. 17 § 3305. 18
19 Defendants cite Article G of the Bello Family Trust in support of their position that they
20 have the authority to sell the trust assets, Article G provides, in relevant part, that “The Trustees 21 may bargain, sell, lease . . . or otherwise dispose of any property in any trust herein created or 22 any property subsequently acquired . . . .“ Second Amended Complaint, Deci. of Bello family 23 Trust at 21-22 (Aug. 21, 2018). However, this provision has no bearing on whether the Court 24
25 has the authority to confer the power to sell to Defendants pursuant to 15 G.C.A. § 3305, the 26 powers for which Defendants petitioned. Rather, the language indicates Court approval is not 27
Page 6 of 7 Decision and Order CVO4O$-1 7, Bukikosa eta!. v. Bello et al.
required: “ . . . the Trustees shall have the follow powers and duties . . . to be exercisable
2 without order, license or leave of the court.” Bello Family Trust at 21-22 (emphasis added).
3 While the Court understands Defendants’ desire to conduct the sale in an open and 4 careful manner, Defendants have petitioned the Court for authority to sell under 15 G.C.A. § 5 3305. The Court does not see the relevance of Article G to the Court’s authority to order the 6
7 sale, considering Article G specifically provides that the trustees have the power to do so
$ without leave of the Court.
9 The Court finds that it lacks the power under to authorize the sale for which Defendants 10 petitioned. 11 CONCLUSION 12
13 For the reasons stated above, Defendants’ Petition is DENIED. The Court does not
14 have the authority under 15 G.C.A. § 3305 to authorize the trustees of the Bello Family Trust to 15 sell the lots in question. 16
17 IT IS SO ORDERED this 5th day of February, 18
21 HONORABLE ALBER RENA III 22 Presiding Judge, Superior Guam
25 ‘Li
dge ta’ 26 ori9IfiaI ,rtO
27 v’) 28 Date -
Deout . ek. Supert U’h r Page 7 of 7