[Cite as Wyper v. DuFour, 2019-Ohio-1035.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
Margaret E. Wyper, et al. Court of Appeals No. WD-18-050
Appellees Trial Court No. 17 CV 311
v.
Nadine DuFour, et al. DECISION AND JUDGMENT
Appellant Decided: March 22, 2019
*****
Kevin J. Kenney and Christopher Hensien, for appellees.
Christopher F. Parker, for appellee Steven N. Skutch, Successor Trustee.
Marvin A. Robon and R. Ethan Davis, for appellant.
ZMUDA, J.
I. Introduction
{¶ 1} Appellant, Nadine DuFour, appeals the judgment of the Wood County Court
of Common Pleas, ordering her to terminate her possession of property located at 29666
Chatham Way, Perrysburg, Ohio (the “Chatham property”), and granting her possession
of the property located at 11149 River Bend Court West, Perrysburg, Ohio (the “River
Bend property”). Finding no error in the trial court’s judgment, we affirm. A. Facts and Procedural Background
{¶ 2} This appeal involves the application of certain provisions contained in the
Dan E. Wyper Trust Agreement. Dan E. Wyper, the settlor of the trust established under
the trust agreement, died in October 2016. Thereafter, appellant became the trustee of the
trust. Eight months later, appellees, Margaret and David Wyper, filed a “complaint for
declaratory judgment, breach of trust, and damages,” in which they sought to remove
appellant as trustee based upon her alleged failure to make distributions to them in
accordance with the terms of the trust agreement. Margaret and David are Dan’s
children.
{¶ 3} On January 10, 2018, the trial court granted appellees’ motion to remove
appellant as trustee, and subsequently appointed appellee, Steven Skutch, as successor
trustee. Thereafter, Skutch requested assistance regarding the disposition of the Chatham
property and the River Bend property. Margaret and David wished to sell the Chatham
property, which was transferred into the trust by Dan after he bought it in August 2015.1
However, appellant was a resident of the Chatham property, having moved from the
River Bend property with Dan prior to his death. After moving to the Chatham property,
Dan leased the River Bend Property to a tenant on a one-year lease commencing on
July 1, 2016, and automatically renewing on a month-to-month basis upon the expiration
1 It appears from the record that the Chatham property is currently encumbered with a $398,000 mortgage. According to appellees, the income generated by the trust is insufficient to make the payments on the mortgage. As such, Margaret and David wish to sell the Chatham property in an effort to prevent its foreclosure.
2. of the one-year term. The tenant currently remains in the River Bend property on the
automatically renewing month-to-month lease.
{¶ 4} Upon Skutch’s request for its assistance regarding the disposition of the
properties, the court directed the parties to brief the matter. On May 29, 2018, Margaret
and David filed their brief, in which they asserted that the trust agreement did not support
appellant’s continued residence at the Chatham property. In support of their argument,
Margaret and David cited paragraph 3.04 of the trust agreement, which provides:
3.04 After the death of the Settlor and payment of the expenses of
his last illness and funeral, the Trustee shall pay to or apply for the benefit
of the Settlor’s companion, Nadine DuFour, if she is living at his death,
herein called “Income Beneficiary”, all of the net income of the Trust
Estate in monthly or other convenient installments, except for two-thirds
(2/3rds) of the income I am entitled to receive from SW Storage and
Transport Services, LLC including but not limited to exclusive occupancy
of my residence commonly known as 11149 River Bend Court West,
Perrysburg, Ohio 43551. Provided, however, that in the event that Nadine
DuFour remarries or cohabitates with a non-relative male, then her right to
exclusive occupancy of my residence commonly known as 11149 River
Bend Court West, Perrysburg, Ohio 43551, shall lapse and the aforesaid
property shall be distributed pursuant to paragraph 3.07. The remaining
two-thirds (2/3rds) of the income I am entitled to receive from SW Storage
3. and Transport Services, LLC, I give equally to my children, David Gregory
Wyper and Margaret Elizabeth Wyper, and shall be distributed pursuant to
paragraphs 3.07 and 3.04.
{¶ 5} Because the foregoing provision referred specifically to the River Bend
property, and made no mention of the Chatham property, Margaret and David argued that
appellant was not entitled to continued possession of the Chatham property. Pursuant to
the express language of paragraph 3.04, Margaret and David acknowledged that appellant
was entitled to take possession of the River Bend property upon the eviction of the
tenants that were currently residing therein.
{¶ 6} On May 29, 2018, appellant filed her brief in support of her continued
residence at the Chatham property. According to appellant, the language “exclusive
occupancy of my residence commonly known as 11149 River Bend Court West,
Perrysburg, Ohio 43551” from paragraph 3.04 of the trust agreement provided her with
exclusive occupancy of Dan’s residence at the time of his death, which the parties agreed
was the Chatham property. Appellant asserted that she was entitled to occupy the
Chatham property. Appellant argued that Dan’s intent to provide her with occupancy of
the Chatham property at the time of his death, rather than the River Bend property, was
demonstrated by the fact that Dan leased out the River Bend property prior to his death,
rendering it impossible for her to occupy the River Bend property. Moreover, appellant
noted the fact that Dan had transferred the Chatham property into the trust prior to his
death.
4. {¶ 7} On May 30, 2018, Skutch submitted his brief on the issue, arguing that the
terms of the trust agreement are clear and thus the interpretation of those terms requires
no reference to extrinsic evidence. In his brief before the trial court, Skutch argued that
the express language of paragraph 3.04 provided appellant with the right to occupy the
specific property named therein (i.e. the River Bend property). Skutch noted that Dan
acquired the Chatham property and transferred it into the trust 14 months before his
death, but he never amended the provisions of paragraph 3.04 to specify that appellant
was to occupy the Chatham property instead of the River Bend property upon his death.
{¶ 8} Upon consideration of the parties’ respective positions regarding the
treatment of the Chatham property and River Bend property under paragraph 3.04 of the
trust agreement, the trial court issued its decision on June 19, 2018.
{¶ 9} In its decision, the trial court found that the language “exclusive occupancy
of my residence commonly known as 11149 River Bend Court West, Perrysburg, Ohio
43551” clearly conveyed a right to exclusive occupancy of the River Bend property to
appellant. Due to the specific reference to the River Bend property found in paragraph
3.04, the court rejected appellant’s argument that she was entitled to occupancy of the
Chatham property. The court went on to find that Dan had “ample opportunity to amend
the Trust to reflect his wish that DuFour occupy Chatham Way upon his death, if he had
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[Cite as Wyper v. DuFour, 2019-Ohio-1035.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
Margaret E. Wyper, et al. Court of Appeals No. WD-18-050
Appellees Trial Court No. 17 CV 311
v.
Nadine DuFour, et al. DECISION AND JUDGMENT
Appellant Decided: March 22, 2019
*****
Kevin J. Kenney and Christopher Hensien, for appellees.
Christopher F. Parker, for appellee Steven N. Skutch, Successor Trustee.
Marvin A. Robon and R. Ethan Davis, for appellant.
ZMUDA, J.
I. Introduction
{¶ 1} Appellant, Nadine DuFour, appeals the judgment of the Wood County Court
of Common Pleas, ordering her to terminate her possession of property located at 29666
Chatham Way, Perrysburg, Ohio (the “Chatham property”), and granting her possession
of the property located at 11149 River Bend Court West, Perrysburg, Ohio (the “River
Bend property”). Finding no error in the trial court’s judgment, we affirm. A. Facts and Procedural Background
{¶ 2} This appeal involves the application of certain provisions contained in the
Dan E. Wyper Trust Agreement. Dan E. Wyper, the settlor of the trust established under
the trust agreement, died in October 2016. Thereafter, appellant became the trustee of the
trust. Eight months later, appellees, Margaret and David Wyper, filed a “complaint for
declaratory judgment, breach of trust, and damages,” in which they sought to remove
appellant as trustee based upon her alleged failure to make distributions to them in
accordance with the terms of the trust agreement. Margaret and David are Dan’s
children.
{¶ 3} On January 10, 2018, the trial court granted appellees’ motion to remove
appellant as trustee, and subsequently appointed appellee, Steven Skutch, as successor
trustee. Thereafter, Skutch requested assistance regarding the disposition of the Chatham
property and the River Bend property. Margaret and David wished to sell the Chatham
property, which was transferred into the trust by Dan after he bought it in August 2015.1
However, appellant was a resident of the Chatham property, having moved from the
River Bend property with Dan prior to his death. After moving to the Chatham property,
Dan leased the River Bend Property to a tenant on a one-year lease commencing on
July 1, 2016, and automatically renewing on a month-to-month basis upon the expiration
1 It appears from the record that the Chatham property is currently encumbered with a $398,000 mortgage. According to appellees, the income generated by the trust is insufficient to make the payments on the mortgage. As such, Margaret and David wish to sell the Chatham property in an effort to prevent its foreclosure.
2. of the one-year term. The tenant currently remains in the River Bend property on the
automatically renewing month-to-month lease.
{¶ 4} Upon Skutch’s request for its assistance regarding the disposition of the
properties, the court directed the parties to brief the matter. On May 29, 2018, Margaret
and David filed their brief, in which they asserted that the trust agreement did not support
appellant’s continued residence at the Chatham property. In support of their argument,
Margaret and David cited paragraph 3.04 of the trust agreement, which provides:
3.04 After the death of the Settlor and payment of the expenses of
his last illness and funeral, the Trustee shall pay to or apply for the benefit
of the Settlor’s companion, Nadine DuFour, if she is living at his death,
herein called “Income Beneficiary”, all of the net income of the Trust
Estate in monthly or other convenient installments, except for two-thirds
(2/3rds) of the income I am entitled to receive from SW Storage and
Transport Services, LLC including but not limited to exclusive occupancy
of my residence commonly known as 11149 River Bend Court West,
Perrysburg, Ohio 43551. Provided, however, that in the event that Nadine
DuFour remarries or cohabitates with a non-relative male, then her right to
exclusive occupancy of my residence commonly known as 11149 River
Bend Court West, Perrysburg, Ohio 43551, shall lapse and the aforesaid
property shall be distributed pursuant to paragraph 3.07. The remaining
two-thirds (2/3rds) of the income I am entitled to receive from SW Storage
3. and Transport Services, LLC, I give equally to my children, David Gregory
Wyper and Margaret Elizabeth Wyper, and shall be distributed pursuant to
paragraphs 3.07 and 3.04.
{¶ 5} Because the foregoing provision referred specifically to the River Bend
property, and made no mention of the Chatham property, Margaret and David argued that
appellant was not entitled to continued possession of the Chatham property. Pursuant to
the express language of paragraph 3.04, Margaret and David acknowledged that appellant
was entitled to take possession of the River Bend property upon the eviction of the
tenants that were currently residing therein.
{¶ 6} On May 29, 2018, appellant filed her brief in support of her continued
residence at the Chatham property. According to appellant, the language “exclusive
occupancy of my residence commonly known as 11149 River Bend Court West,
Perrysburg, Ohio 43551” from paragraph 3.04 of the trust agreement provided her with
exclusive occupancy of Dan’s residence at the time of his death, which the parties agreed
was the Chatham property. Appellant asserted that she was entitled to occupy the
Chatham property. Appellant argued that Dan’s intent to provide her with occupancy of
the Chatham property at the time of his death, rather than the River Bend property, was
demonstrated by the fact that Dan leased out the River Bend property prior to his death,
rendering it impossible for her to occupy the River Bend property. Moreover, appellant
noted the fact that Dan had transferred the Chatham property into the trust prior to his
death.
4. {¶ 7} On May 30, 2018, Skutch submitted his brief on the issue, arguing that the
terms of the trust agreement are clear and thus the interpretation of those terms requires
no reference to extrinsic evidence. In his brief before the trial court, Skutch argued that
the express language of paragraph 3.04 provided appellant with the right to occupy the
specific property named therein (i.e. the River Bend property). Skutch noted that Dan
acquired the Chatham property and transferred it into the trust 14 months before his
death, but he never amended the provisions of paragraph 3.04 to specify that appellant
was to occupy the Chatham property instead of the River Bend property upon his death.
{¶ 8} Upon consideration of the parties’ respective positions regarding the
treatment of the Chatham property and River Bend property under paragraph 3.04 of the
trust agreement, the trial court issued its decision on June 19, 2018.
{¶ 9} In its decision, the trial court found that the language “exclusive occupancy
of my residence commonly known as 11149 River Bend Court West, Perrysburg, Ohio
43551” clearly conveyed a right to exclusive occupancy of the River Bend property to
appellant. Due to the specific reference to the River Bend property found in paragraph
3.04, the court rejected appellant’s argument that she was entitled to occupancy of the
Chatham property. The court went on to find that Dan had “ample opportunity to amend
the Trust to reflect his wish that DuFour occupy Chatham Way upon his death, if he had
chosen to do so.” The court also rejected appellant’s argument that Dan’s leasing of the
River Bend property demonstrated his intent to provide her with occupancy of the
Chatham property, finding that the lease of the River Bend property was not related to the
5. issue of whether she was entitled to exclusive occupancy of the Chatham property under
the terms of the trust agreement.
B. Assignments of Error
{¶ 10} Following the trial court’s order rejecting appellant’s claim to exclusive
occupancy of the Chatham property, appellant filed a timely notice of appeal, and now
assigns the following errors for our review:
1. The Trial Court erred in finding that Appellant Nadine DuFour
has “no claim to Chatham Way” when the Chatham Way property is an
asset of the Trust, and Appellant DuFour is the present and primary
beneficiary of the Trust.
2. The Trial Court committed reversible error by ordering
Defendant/Appellant Nadine DuFour to terminate her possession and
vacate the premises known as 29666 Chatham Way, Perrysburg, Ohio
43551.
{¶ 11} Because appellant’s assignments of error are interrelated, we will address
them simultaneously.
II. Analysis
{¶ 12} In appellant’s assignments of error, she argues that the trial court erred in
finding that she is not entitled to exclusive occupancy of the Chatham property based
upon its reading of paragraph 3.04 of the trust agreement.
6. {¶ 13} We apply a de novo standard of review to the trial court’s interpretation of
the trust agreement, which is a matter of law. Arnott v. Arnott, 132 Ohio St.3d 401,
2012-Ohio-3208, 972 N.E.2d 586, ¶ 14.
{¶ 14} “A court’s purpose in interpreting a trust is to effectuate, within the legal
parameters established by a court or by statute, the settlor’s intent.” Domo v. McCarthy,
66 Ohio St.3d 312, 612 N.E.2d 706 (1993), paragraph one of the syllabus. “Interpreting a
trust is akin to interpreting a contract; as with trusts, the role of courts in interpreting
contracts is ‘to ascertain and give effect to the intent of the parties.’” Arnott at ¶ 14,
quoting Saunders v. Mortensen, 101 Ohio St.3d 86, 2004-Ohio-24, 801 N.E.2d 452, ¶ 9.
{¶ 15} “Generally, when the language of the instrument is not ambiguous, a court
may ascertain the settlor’s intent from the express terms of the trust itself. A court
presumes that the settlor used the words in the trust according to their common, ordinary
meaning.” Poston v. Schuster, 6th Dist. Huron No. H-07-037, 2008-Ohio-2085, ¶ 8,
citing Zahn v. Nelson, 170 Ohio App.3d 111, 2007-Ohio-667, 866 N.E.2d 58, ¶ 26 (4th
Dist.). Thus, there is no need to resort to principles of interpretation when the express
terms of the trust agreement are clear and unambiguous. Id. at ¶ 10. Absent a finding of
ambiguity, “we must give effect to the settlor’s clear intent as it is stated.” Id. at ¶ 12,
citing Domo v. McCarthy, 66 Ohio St.3d 312, 314, 612 N.E.2d 706 (1993).
{¶ 16} In the present case, the issue is whether appellant is entitled to exclusive
occupancy of the Chatham property pursuant to the trust agreement. Appellant attempts
to conflate this issue by raising arguments pertaining to trust agreement provisions not
7. cited by the parties before the trial court. Specifically, appellant urges, for the first time,
that her election to reside at the Chatham property is “conclusive and binding” on the
trust and its beneficiaries.
{¶ 17} In support of her argument, appellant cites paragraph 3.05, a provision that
permits the trustee to invade the principal of the trust to provide for the care, support, and
maintenance of the income beneficiary, to establish that Dan’s intent was to provide all of
the trust income to her, excluding two-thirds of the income of SW Storage and Transport
Services, LLC. Further, appellant cites three provisions (paragraphs 4.01, 4.02, and 4.07)
relating to the powers of the trustee to retain investments, manage trust property, and
determine principal and income, to support her contention that she had the authority to
“use, operate, and control” the Chatham property and, therefore, the right occupy the
Chatham property.
{¶ 18} As an initial matter, we find that these additional provisions are irrelevant
to the issue before us, because the language found in paragraph 3.04 is dispositive in this
case. Further, we note that the parties’ arguments below, relative to the issue of whether
appellant is entitled to occupancy of the Chatham property, were limited to the
interpretation of paragraph 3.04 of the trust agreement and the language contained
therein. Appellant did not claim to have the right to elect which residence she would like
to occupy before the trial court below. Having failed to raise this argument or address the
other provisions she now cites before the trial court, the argument is waived on appeal.
See Perk v. Tomorrows Home Solutions, 8th Dist. Cuyahoga No. 107012, 2019-Ohio-
8. 103, ¶ 21, citing Foster v. Wells Fargo Fin. Ohio, Inc., 195 Ohio App.3d 497, 2011-
Ohio-4632, 960 N.E.2d 1022, ¶ 24 (8th Dist.) (“It is well established that a litigant’s
failure to raise an argument in the trial court waives the litigant’s right to raise the issue
on appeal.”).
{¶ 19} As set forth above, paragraph 3.04 entitles appellant, subject to certain
conditions not at issue here, to “exclusive occupancy of my residence commonly known
as 11149 River Bend Court West, Perrysburg, Ohio 43551.” Under this clear and
unambiguous language, appellant is entitled to exclusive occupancy of the River Bend
property. No mention is made of appellant’s right to occupancy of the Chatham property.
As noted by the trial court, Dan had over one year to amend the terms of the trust
agreement to reflect his desire to provide appellant with occupancy of the Chatham
property, but failed to do so. Appellant’s argument is tantamount to suggesting that Dan
meant to add the Chatham property to paragraph 3.04. Even if this premise were true, it
would not change the outcome of this case. The theory that the settlor would have
drafted his trust differently had he foreseen circumstances as they existed at his death
“does not justify altering the manifest meaning of the [trust].” Evans v. Evans, 2014-
Ohio-4450, 20 N.E.3d 1139, ¶ 94 (4th Dist.), citing Summers v. Summers, 121 Ohio
App.3d 263, 699 N.E.2d 958 (4th Dist.1996).
{¶ 20} Given our conclusion that the language employed in paragraph 3.04 is not
ambiguous, we need not employ principles of interpretation in order to give effect to
Dan’s intent. The language of paragraph 3.04 clearly and unambiguously resolves the
9. issue before us, and establishes that appellant is entitled to exclusive occupancy of the
separately identified River Bend property. Therefore, the trial court did not err when it
ordered appellant to vacate the Chatham property.
{¶ 21} Accordingly, appellant’s assignments of error are not well-taken.
III. Conclusion
{¶ 22} Having found appellant’s assignments of error not well-taken, the judgment
of the Wood County Court of Common Pleas is hereby affirmed. Appellant is ordered to
pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. _______________________________ JUDGE Christine E. Mayle, P.J. _______________________________ Gene A. Zmuda, J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
10.