Gatyas v. Trebowski
Filed 4/8/13 Gatyas v. Trebowski CA6
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
MARY ANN GATYAS, et al.,
Plaintiffs and
Respondents,
v.
JANET D. TREBOWSKI, etc.,
Defendant and
Appellant.
H037947
(Santa Clara
County
Super. Ct. No. 1-09-PR164890)
In 2008,
during proceedings to dissolve his marriage to appellant Janet Trebowski,
Theodore Trebowski
title="">[1] revoked a 1999
family trust and executed a revocable trust in his own name. Six months later, he died. Appellant sought to invalidate Theodore's
revocation and establish her title to the community assets as successor trustee
of the family trust. The successor trustees of Theodore's trust, respondents
Mary Ann Gatyas and Robert Trebowski, filed a competing petition to establish
the estate's ownership of Theodore's interests in real and personal property. The trial court ruled in respondents' favor
and awarded respondents half the proceeds from the sale of the Trebowskis'
marital residence in Los Altos Hills.
Appellant
seeks reversal, renewing her contention that Theodore's revocation of the
family trust was invalid. We find no error,
however, and must therefore affirm the judgment.
Background
On April 14, 2008, after nearly 45 years
of marriage to Theodore, appellant filed a petition for dissolution of the
marriage. The family law summons
included standard restraining orders, including a prohibition on "creating
a nonprobate transfer or modifying a nonprobate transfer in a manner that
affects the disposition of property subject to the transfer, without the
written consent of the other party or an order of the court. Before revocation of a nonprobate transfer
can take effect or a right of survivorship to property can be eliminated,
notice of the change must be filed and served on the other party."
The
in this appeal pertains to Theodore's revocation of The Trebowski Family 1999
Trust, dated May 6, 1999. The trust contained the Trebowskis' Los Altos
Hills home on Greenhills Court
and all household and personal assets then possessed or later acquired by either
party. Under section 2.2(a) of the
family trust, revocation "in whole or in part" was permitted
"with respect to community property held in the trust by a written
instrument, signed and dated by either Settlor and delivered to the Trustee and
the other Settlor."
name="_ftnref2" title="">[2]
In August
2008, while the parties were working on a division of their seven investment
accounts, appellant decided to buy a new house in Contra
Costa County. On August
25, 2008 appellant informed Theodore that in order to close escrow
on the purchase by her deadline of September
2, 2008, she needed to divide the non-IRA accounts at Morgan
Stanley immediately. Appellant expressed
her willingness to revoke her half of the trust and waive any claim on it after
her portion was transferred out.
Theodore, however, stated that he did not want any money moved out of
the Morgan Stanley accounts until he could set up a separate trust. Toward that end Theodore arranged meetings
with his estate-planning attorneys for September 2 and September 11, 2008. Theodore's family law attorneys had
communicated with appellant's attorneys regarding Theodore's need to do his own
estate planning before the accounts could be distributed.
Appellant
was aware that Theodore was making efforts to complete his estate planning, but
she was frustrated by the delay in gaining access to the funds. After discussion with the family court judge,
the parties agreed that appellant could use the home equity line of credit for
her purchase. Appellant obtained a new
closing date of September 15, 2008. Meanwhile, in the family court the parties
stipulated to an order that the Greenhills Court
residence would be sold.
On September 8, 2008, appellant signed
multiple forms, each titled "Authorization to Journal Securities or
Funds," which authorized a transfer of half the securities and funds from
the family trust to Theodore's new trust.
Theodore signed those forms on September
11, 2008. That same day, he
executed his "Revocation of Trust Agreement and Last Will," in which
he revoked, "in its entirety," the 1999 family trust. He also executed his new trust, the Theodore
Trebowski Living Trust, which appointed respondents -- his son, Robert
Trebowski, and his sister, Mary Ann Gatyas -- as successor trustees. Additional documents, including a pour-over
will and assignment of property, were also executed that day.
In the
early afternoon of September 11, 2008, Theodore's family law attorney, Colleen
Duffy-Smith, sent an e-mail to appellant's family law attorneys, the paralegal
at their firm, and appellant's financial advisor at Morgan Stanley, informing
them all of the completion that day of Theodore's estate plan and his
authorization to split the Morgan Stanley assets. Duffy-Smith attached a copy of Theodore's
revocation of the family trust and the prior will. An hour and a half later, Margaret Desmond, a
legal assistant to appellant's attorneys, forwarded the e-mail and attachment
to appellant. Later that day Sandra
Wang, appellant's financial advisor, "[u]pdated" appellant by
telephone on "the status of the splits" and discussed the prospect of
appellant's "setting up her own trust."
At trial
appellant denied receiving the forwarded e-mail from Desmond attaching
Theodore's revocation, or any other notification of the event. Theodore told Duffy-Smith that he had given
Colantuno the revocation to deliver personally to appellant. However, Caroline Colantuno, the Trebowskis'
daughter, testified that her father never gave her anything to deliver to
appellant. She also denied being asked
by her father whether she had delivered the revocation to her mother. He did give her a box sealed with tape on
February 21, 2009. Colantuno put the box
in her garage. Appellant testified that
she did not receive any estate-planning documents from Colantuno before
Theodore's death.
Theodore
was found dead in his apartment on March 14, 2009. Two days later appellant asked Theodore's
estate-planning attorney, Serra Goldman, for a copy of Theodore's
estate-planning documents. According to
Goldman, she advised appellant that the documents would be provided to the
successor trustees. A week later one of
appellant's attorneys, Philip Hammer, asked Duffy-Smith for a copy of "Dr.
Trebowski's trust and his Will." In
a letter shortly thereafter he asked for a formal notification "as to the
successor trustee(s) handling Dr. Trebowski's estate," so that he could
proceed with a motion regarding the personal property in the parties' home.
On May 1,
2009, pursuant to Probate Code section 16061.7, respondents served appellant
and her attorneys with a notice of administration of Theodore's 2008 trust,
together with a copy of the trust.
name="_ftnref3" title="">[3] The parties had stipulated that the family
court had continuing jurisdiction to enforce its prior orders allowing the sale
of the Greenhills Court property.
Appellant did not file a contest to Theodore's trust within 120 days, as
provided by Probate Code section 16061.8.
On September 3, 2009, she filed a creditor's claim setting forth the
amount she wanted the estate to reimburse her for expenses relating to the
Greenhills Court property. In that
document she implicitly acknowledged the estate's interest in the
property. Between May 14 and early
December of 2009 appellant's attorneys submitted multiple requests for
reimbursement of expenses appellant had advanced for the property.
On
September 21, 2009, citing Probate Code sections 17200 and 17200.1, appellant
filed a petition in Contra Costa County for an order declaring Theodore's 2008
revocation to be invalid, confirming her as sole successor trustee of the 1999
family trust, and declaring that she held legal title to the Greenhills Court
residence. Appellant asserted that a
written revocation of the family trust had not been delivered to her pursuant
to section 2.2 of the family trust.
Because her marriage to Theodore had not been terminated by a judgment
before he died, and because their respective rights to the Greenhills Court
property had not been adjudicated, the "Purported Revocation" was
invalid and the property remained an asset of the family trust, of which she
was the sole successor trustee.
In November
2009, Theodore's attorneys filed a "Notice of Service of Written Notice of
Revocation of Trust Agreement and Last Will." This document stated that Theodore had served
notice of the revocation on appellant's counsel, "among others," on
September 11, 2008.
In December
2009 respondents submitted a petition to establish the estate's ownership of
certain property, including the Greenhills Court residence. In their supporting points and authorities,
respondents urged the court to find that Theodore's 2008 trust held equitable
title to Theodore's real and personal property, which he had been unable to
transfer from the family trust to his own name or his individual trust before
he died. The petition sought an order
directing appellant to transfer the property to respondents as executors of
Theodore's will, along with real property located in North Carolina and
compensation for personal property appellant had taken from the residence
without authorization.
On April
18, 2010, having approved successive reductions in the listing price without
notice to respondents, appellant executed an agreement for the sale of the
Greenhills Court property, again without notice to or authorization from
respondents. Respondents learned of the
agreement on April 20, 2010, and 10 days later they filed a lis pendens, which
the family court later ordered expunged.
Escrow on the property closed on May 18, 2010, and half of the proceeds
were placed into a trust account for respondents' benefit.
On May 3,
2010, the Santa Clara County Superior Court granted respondents' motion to
coordinate appellant's petition with that of respondents and transfer the
Contra Costa County case to Santa Clara County.
Appellant filed her first amended petition on July 7, 2010.
Trial on
the parties' "competing petitions" did not commence until March 14,
2011 in the probate court.
name="_ftnref4" title="">[4] The court first granted respondents' motion
to amend their answer to appellant's petition in order to include affirmative
defenses of waiver, estoppel, unclean hands, and the bar of the statute of
limitations, Probate Code section 16061.8.
The court then heard testimony and argument on the issue of the effectiveness
of Theodore's revocation under Family Code section 2040. Respondents sought to show that appellant
received the revocation and knew that it was important not only to Theodore but
to her own ability to complete her real estate purchase. After the revocation she used her half of the
released Morgan Stanley funds, and continuing beyond September 2009 she and her
attorneys "acted as if the revocation was valid." Appellant asserted no claim of full ownership
of the Greenhills Court property until late September of 2009. She and her attorneys, for example, had asked
for copies of Theodore's trust; they had accepted respondents' September 3
inventory and appraisal claiming Theodore's half interest in the home; and
their series of requests for expense reimbursement—even after claiming full
ownership-- indicated an assumption that half the property belonged to the
estate. Respondents also complained that
appellant had removed personal property from the residence, in violation of a
specific order of the family court.
The probate
court granted appellant's request to bifurcate the revocation issue and try it
before the remaining issues in dispute, notably appellant's status as successor
trustee of the family trust and that trust's ownership of the Greenhills Court
and North Carolina properties. Appellant
maintained that the "Purported Revocation" of the family trust had
not been "delivered" to her by a "written instrument," as
required by section 2.2(a) of the family trust.
She testified that she had never received the e-mail from Margaret
Desmond forwarding the e-mail attaching the revocation on September 11,
2008. Nor had her daughter Caroline
delivered any estate-planning documents to her before Theodore's death.
When
appellant rested, respondents moved for judgment on her petition under Code of
Civil Procedure section 581, subdivision (c).
After taking additional evidence, including appellant's further
testimony that she had never received the revocation e-mail, the court granted
the motion and proceeded to hear evidence on respondents' separate petition and
request for damages for the asserted taking and concealment of personal
property belonging to the estate.
At the
close of trial on April 15, 2011, the trial court announced its ruling in respondents'
favor. The court found that Theodore's
2008 trust and will were valid, and that half the proceeds from the sale of the
Greenhills Court residence belonged to his trust.
which the home was sold was "improper," and a "better job could
have been done" apprising respondents of the taking of the personal
property; but it saw no bad faith or "cynical motive" on appellant's
part when she removed personal property and unilaterally made decisions about
the marketing of the home; "in all likelihood" appellant was
"relying on her lawyers to keep her out of trouble." Accordingly, the court denied respondents'
request for damages under Probate Code section 859, and it ordered the parties
to meet and confer regarding the proper division of the personal property.
In its
written statement of decision the court elaborated on its findings. It agreed with respondents that (1) appellant
had waived her untimeliness challenge, which was addressed to respondents'
failure to file a notice of revocation before Theodore's death; (2) appellant's
petition, which contested the validity of the 2008 trust, was untimely under
Probate Code section 16061.8; and (3) appellant was estopped to contest the
validity of the revocation through her conduct both before and after Theodore's
death. Addressing the merits of
appellant's petition, the court found that "actual service and
delivery" had been made on her on September 11, 2008. The court noted that in 2008 Code of Civil
Procedure section 1010.6 did not require any particular method of agreement to
accept service by e-mail.
name="_ftnref6" title="">[6] Here, appellant had "manifested an
agreement to accept service of the Revocation by email, and that service of the
Revocation was properly made on [her]."
Further, "to the extent that email service was not authorized by
statute, Janet Trebowski waived any irregularity." Finally, the court observed that the
revocation had not "remotely affect[ed] any part of Janet Trebow[s]ki's
one-half interest in the marital estate.
It only affected Dr. Trebowski's one-half interest in the marital estate
and, at the time it was signed, she did not care what he did with his one-half
interest."
The final
disposition awarded respondents half the proceeds from the sale of the Greenhills
Court property, all of Theodore's separate personal property, and a one-half
interest in the community's personal property.
From the ensuing judgment on December 22, 2011, appellant brought
this timely appeal.
Discussion
1. Notice of Theodore's Revocation
Appellant
renews her challenge to the validity of Theodore's 2008 revocation of the 1999
family trust. She asserts two grounds
for reversal. First, under the automatic
temporary restraining orders (ATROs) issued as part of the dissolution petition,
Theodore was restrained from "creating a nonprobate transfer or modifying
a nonprobate transfer in a manner that affects the disposition of property
subject to the transfer, without the written consent of the other party or an
order of the court." (Fam. Code,
§ 2040, subd. (a)(4).) Appellant
emphasizes that the exception to this restriction under subdivision (b)(2)
applies only if notice of the revocation is "filed and served on the other
party."
title="">[7] That exception was inapplicable here,
appellant argues, because Theodore's revocation of the 1999 trust had not been
filed and served before September 11, 2008, or even before Theodore's
death. In appellant's view, a
"bright-line" construction of this statute is necessary to promote
"predictability, reduced litigation, efficient judicial administration,
faster resolution of disputes, and disposal at a pretrial stage." It "would then be perfectly clear what
type and manner of notice 'must' be given before a trust revocation could take
effect and the consequences of giving or not giving such notice." Consequently, nothing less than "an
actual 'filing' and 'serving' " should be deemed sufficient to make
the revocation valid.
To accept
appellant's position, however, would mean invariably disregarding a party's
has revoked his interest in a trust.
This is such a case. The trial
court determined that appellant had actual notice of the revocation, which
served the dual objectives of releasing his interest in property he wished to
transfer into his own trust and allowing appellant to access the remaining
funds for her real estate purchase.
Thus, the trial court expressly found that appellant "at all times
knew of his intention to revoke his interest in the 1999 Trust, knew of the
Revocation, and did not object while he was alive." Not only was appellant aware of the
revocation both before and after its completion, but a copy of the executed
document was provided to her. To ignore
these facts -- which appellant does not challenge as unsupported by substantial
evidence -- in favor of appellant's proposed strict enforcement of Family Code
section 2040, subdivision (b)(2), would elevate hypertechnical applications of
statutory procedure to new heights without serving the legislative purpose of
protecting the property rights of both parties during dissolution proceedings.
trial court's observation that, unlike the cases on which appellant relied, the
revocation had not even "remotely" affected appellant's half of the
Trebowskis' community property. Indeed,
noted the court, quoting Estate of
Mitchell (1999) 76 Cal.App.4th 1378, 1394, Theodore "did nothing 'that
would injure or dissipate the property of the marital estate' or 'that would
place the property beyond the power of the court thus preventing the court from
allocating the property in its final decree.' "
At trial
appellant clearly stated that she needed her half of the non-IRA accounts to
enable her to complete the purchase of her new home before escrow closed. She understood (and told Sandra Wang, her
financial advisor) that Theodore would not authorize the division of the
Morgan-Stanley funds until he had set up his new estate plan and a new trust in
which to deposit his half of the funds.
what he was doing" about estate planning.
She "didn't care" what he did with his half of the community
property but simply wanted everyone to "hurry up so [she] didn't miss the
closing." Wang's notes indicated
that appellant was willing to revoke her own half of the 1999 trust in order to
facilitate the release of the funds she needed.
Appellant's professed belief that Theodore could transfer property into
a new trust without revoking his interest in the old one was implicitly
rejected by the trial court as not credible.
appears to have perceived an inconsistency between appellant's opposition to
the revocation (and concomitant assertion that title to the Greenhills Court
home belonged to her) and her implicit acknowledgement -- particularly through
her creditor's claim and requests for reimbursement -- that half of the
Greenhills Court property belonged to Theodore's estate. The appellate record fully supports these
findings.
2. Compliance with the 1999
Trust
Appellant
contends that Theodore's revocation never became effective because he did not
comply with section 2.2(a) of the trust instrument.
her the e-mail containing Theodore's revocation; but this method, she
maintains, was not authorized by the terms of the family trust, nor could the
Trebowskis have contemplated e-mail as an acceptable method of delivery in 1999
when they executed the trust instrument.
Although unnecessary
to the disposition of this issue, we note in passing the trial court's finding
that waiver and estoppel precluded appellant's challenge to Theodore's
revocation. Respondents had argued that
appellant's conduct conveyed an implied assent to or ratification of the
revocation: she knew about Theodore's intent before it took place, she used it
to her own advantage by receiving her half of the Morgan Stanley funds, and she
and her attorneys "acted as if the revocation was valid through and past
September 2009." The trial court
agreed with respondents' position, finding that waiver and estoppel were
applicable here.
Appellant
does not dispute the factual support for these findings; instead, she protests
that the court's ruling on respondents' affirmative defenses was improper
because respondents had failed to raise waiver or estoppel in their motion for
judgment. She also maintains that
because the "file and serve" requirement of Family Code section 2040,
subdivision (b)(2), is a bright-line rule, it forecloses any application of
these judicial doctrines.
Were we to
address those equitable principles on the merits, we would agree with the trial
court that appellant acquiesced in or ratified the revocation through her
conduct and that of her counsel both before and after Theodore's death, thereby
waiving any procedural infirmities. She acknowledged the estate's claim on half
of the Greenhills Court property by requesting contributions toward its
expenses and even filed a creditor's claim in early September of 2009 without
disputing the estate's interest in the home.
As to appellant's second complaint, respondents aptly point out that
appellant did not specifically oppose the application of waiver or estoppel in
her objections to the proposed statement of decision.
In any
event, even disregarding the applicability of respondents' affirmative
defenses, we must uphold the lower court's determination that Theodore complied
with the revocation provision of his trust.
Section 2.2 of the family trust explicitly stated that revocation was
not permitted except under specified conditions. As noted earlier, section 2.2(a) provided for
one of those conditions, as follows:
"During the joint lifetimes of the Settlors, this trust may be revoked in whole or in part with respect to
community property held in the trust by a written instrument, signed and dated
by either Settlor and delivered to the Trustee and the other Settlor. On such revocation, the Trustee shall
promptly deliver to both Settlors all of the community property referred to in
the written revocation which shall continue to be their community
property." (Italics added.)
Appellant
correctly observes that this provision states the exclusive method for
accomplishing a revocation that affects the disposition of community
property. (See Masry v. Masry (2008) 166 Cal.App.4th 738, 742-743 [where trust
provision provided nonexclusive method of revocation, settlor could rely on
Probate Code section 15401 to accomplish revocation]; see also
Cal.App.4th 882, 888 [revocation by will authorized as trust did not restrict
method of "written notice"]; cf. King
v. Lynch (2012) 204 Cal.App.4th 1186, 1193 [modification method specified
in trust binding notwithstanding more liberal statutory procedure].) Unlike appellant, however, we do not read
into section 2.2 a requirement that the written instrument must be given to the
recipient personally or sent by postal service in order to constitute a valid
delivery. Appellant urges this court to
use Probate Code section 1217 to interpret the word "delivered." That statute provides: "If a notice or
other paper is required to be served or otherwise given and no other manner of
giving the notice or other paper is specified by statute, the notice or other
paper shall be mailed or personally delivered as provided in this
chapter."
We see no
indication that the parties were relying on Probate Code section 1217 to give
meaning to the word "delivered."
Had they wished to specify acceptable methods of delivery, they could
have done so in the trust instrument itself, by inserting terms similar to
those of Probate Code section 1217 or by directly adverting to that
statute. There is no indication, however,
that the parties intended to restrict the word "delivered" to the
meanings accorded to "served or otherwise given" in Probate Code
section 1217. The trial court thus
properly found that "the Revocation was delivered to Janet Trebowski in
compliance with Section 2.2(a) of the 1999 Trust."
In summary,
no error appears in the trial court's findings that appellant had adequate
notice of Theodore's revocation of his interest in the 1999 family trust, and
that she acted in accordance with the revocation without challenge until her
September 21, 2009 petition in Contra Costa County.
that revocation was "delivered" to appellant in a manner consistent
with the trust instrument.
Disposition
The
judgment is affirmed.
_______________________________
ELIA,
Acting P. J.
WE CONCUR:
____________________________________
BAMATTRE-MANOUKIAN,
J.
____________________________________
MÃRQUEZ, J.
name="_ftn1" title="">[1]
We will refer to Theodore Trebowski by his first name to distinguish him from
appellant Janet Trebowski.
The entire revocation provision of the trust, section 2.2, stated: "Revocation. Any trust created by this
instrument shall not be subject to revocation except as follows: [¶]
(a) During the joint lifetimes of the Settlors, this trust may be
revoked in whole or in part with respect to community property held in the
trust by a written instrument, signed and dated by either Settlor and delivered
to the Trustee and the other Settlor. On
such revocation, the Trustee shall promptly deliver to both Settlors all of the
community property referred to in the written revocation which shall continue
to be their community property. [¶] (b) A Settlor who transfers his or her
separate property to the trust may revoke this trust in whole or in part with
respect to such separate property during such Settlor's lifetime by a written
agreement, signed and dated by such Settlor and delivered to the Trustee. On such revocation, the Trustee shall
promptly deliver to such Settlor all of such Settlor's separate property
referred to in the written revocation which shall continue to be his or her
separate property. [¶] (c) The Surviving Settlor may at any time
during his or her lifetime revoke the Survivor's Trust in whole or in part by a
written instrument, signed and dated by the Surviving Settlor and delivered to
the Trustee. On such revocation, the
Trustee shall promptly deliver to the Surviving Settlor all of the property
referred to in the written revocation.
[¶] (d) Any trust created by this
instrument which is revocable as provided in this Section may be revoked in
whole or in part by an attorney-in-fact under a power of attorney which grants
the attorney in fact the power of revocation."
