Court of Appeals of Missouri, Western District, First Division
TERRY STEPHENS AND JOHN HILGERT, SUCCESSOR TRUSTEES OF THE GEORGE J SLAHOREK REVOCABLE TRUST AGREEMENT DATED JUNE 12, 2007, Respondents,
CHARLES N MIKKELSEN, A/K/A CARL N MIKKELSEN, ET AL., Appellants.
from the Circuit Court of Buchanan County, Missouri The
Honorable Daniel F. Kellogg, Judge.
Before: James E. Welsh, Presiding Judge, Anthony Rex Gabbert,
Judge, Edward R. Ardini, Jr., Judge.
ANTHONY REX GABBERT, JUDGE.
N. Mikkelsen appeals the circuit court's Judgment finding
Mikkelsen not an heir of Charles C. Kastner on
Trustees' Amended Petition for Declaratory Judgment
and denying Mikkelsen's Motion for Judgment on the
Pleadings. In his sole point on appeal, Mikkelsen contends
that the court erred by granting summary judgment against
Mikkelsen and in favor of Trustees because no party other
than Mikkelsen had ever filed a motion for summary judgment
and Missouri law does not permit a trial court to enter
summary judgment against a party unless there is a pending
motion seeking summary judgment against that party. We
J. Slahorek created a Revocable Trust Agreement (Trust or
Slahorek Trust) on June 12, 2007, in Buchanan County,
Missouri. ARTICLE XII of the Trust provides that "this
agreement and the trust created hereby shall be construed
under and be regulated by the laws of the State of Missouri,
and the validity and effect of this agreement shall be
determined in accordance with the laws of Missouri." The
Trust provides that, upon Slahorek's death, his trust
estate is to be divided into nine shares, including, as
pertinent here, one share to "Charles C. Kastner, per
stirpes." The Trust further provides that, should a
named beneficiary "predecease the GRANTOR and leave no
heirs, that share shall lapse and be divided equally among
the remaining beneficiary shares."
died on July 14, 2012, a resident of Buchanan County,
Missouri. At the time of Slahorek's death, Charles C.
Kastner had died, leaving Charles R. Kastner as his sole
heir. Charles R. Kastner also predeceased Slahorek in
February of 2012. Charles R. Kastner had one child,
Mikkelsen, who was adopted in 1984 by Scott Mikkelsen, a
husband of Mikkelsen's mother; Mikkelsen's mother
joined in the adoption. Charles R. Kastner's estate was
probated in Illinois. Under Illinois law, a child adopted by
another has no right to inherit from his or her biological
parent unless the child falls within one of three statutory
exceptions to that general rule. 755 ILCS 5/2-4(d) (1)-(3).
Mikkelson moved the Cook County, Illinois probate court to
find him sole heir of his biological father, Charles R.
Kastner, arguing an exception to the general rule. On April
8, 2014, the Illinois court found an applicable exception and
named Mikkelsen heir.
December 4, 2014, Trustees filed an Amended Petition for
Declaratory Judgment to obtain the court's determination
as to whether Mikkelsen is entitled to a share of the
Slahorek Trust due to the "Amended Order Declaring
Heirship" in Charles R. Kastner's Illinois probate
estate, or whether Mikkelsen's adoption prevented him
from deriving a benefit from Charles R. Kastner's share
of Slahorek's Missouri Trust under governing Missouri
22, 2015, Mikkelsen filed "Respondent's Motion for
Judgment on the Pleadings with Suggestions in Support."
Therein he effectually conceded that he is not Charles R.
Kastner's heir under Missouri law but argued that the
Illinois declaration that Mikkelsen is Charles R.
Kastner's heir is a valid judgment entitled to full faith
and credit in Missouri courts. He contended that the choice
of law provision in the Trust is inapplicable because it is
only to be used in the event of an ambiguity in the Trust and
the parties agree that the Trust's relevant provisions
are unambiguous and clear. He further contended that the
choice of law provision in the Trust designating Missouri law
as applicable to the Trust is "beside the point"
because Missouri has no specific connection to the specific
issue of whether Mikkelsen's adoption cut off his
heirship. He argued that, although Slahorek was a Missouri
resident and the Trust was established in Missouri, both
Mikkelsen and his biological father were Illinois residents
and Mikkelsen was adopted in Illinois. Mikkelsen argued that,
a party may not designate a state's law as controlling on
an issue to which the state has no connection.
18, 2015, beneficiaries of the Trust who had been joined as
Respondents in the action filed "Opposition of
Respondents Hilgert, Watkins, O'Brien, Wegenka and
to Respondent Charles N. Mikkelsen's Motion for Judgment
on the Pleadings." The beneficiaries argued that
Mikkelsen's status as having been adopted in Illinois is
entitled to full faith and credit by Missouri courts, but
Illinois' declaration of heirship for the limited purpose
of probating an Illinois estate does not similarly carry over
in Missouri. The beneficiaries argued that the Illinois court
did not determine Mikkelsen to be an "heir" of
Charles C. Kastner within the meaning of George J.
Slahorek's Trust and, therefore, its judgment is not
entitled to full faith and credit by Missouri courts to
resolve that question. The beneficiaries noted that, the
issue of a purported beneficiary's right to inherit
Missouri personal property under a Missouri trust is governed
by the settlor's intent as expressed in the words used in
the trust instrument and given meaning under the laws of
Missouri. The beneficiaries argued that, Missouri case law
interpreting Missouri's adoption statutes had long
determined that an adopted child becomes a lineal descendant
and heir of his or her adopted family by operation of law,
and ceases to be an heir and lineal descendant of his or her
22, 2015, Trustees filed a brief in response to
Mikkelsen's motion for judgment on the pleadings and
filed an amended brief on July 8, 2015.
August 6, 2015, the court made a docket entry stating that a
"trial setting" was held and that trial was
scheduled for September 16, 2015. On September 16, 2015, the
court made a docket entry stating: "Case reset for
hearing on October 6, 2015." On October 6, 2015, a
hearing was held. On November 18, 2015, the court issued a
written Judgment finding Mikkelsen not an heir of Charles C.
Kastner and not entitled to one-ninth share under the
Slahorek Trust. In that same Judgment, the court denied
Mikkelsen's motion for judgment on the pleadings.
sole point on appeal, Mikkelsen contends that the circuit
court erred by granting summary judgment against Mikkelsen
and in favor of Trustees because no party other than
Mikkelsen had ever filed a motion for summary judgment and
Missouri law does not permit a trial court to enter summary
judgment against a party unless there is a pending motion
seeking summary judgment against that party. He argues that
the October 6, 2015, hearing was on Mikkelsen's pending
motion for judgment on the pleadings, nothing more. He
argues, essentially, that the court misapplied the law.
"Where a misapplication of the law is asserted, our
review is de novo." Jackson v. Mills,
142 S.W.3d 237, 240 (Mo. App. 2004).
preliminary matter, we disagree with Mikkelsen's
characterization of the October 6, 2015, proceedings. Nothing
within the record indicates that the hearing was solely for
the purpose of taking up Mikkelsen's motion for judgment
on the pleadings. Rule 55.27(c) states that "on
application of any party" a motion for judgment on the
pleadings shall be heard and determined before trial unless
the court orders that the hearing and determination thereof
be deferred until trial. There is no record of Mikkelsen
requesting a pre-trial ruling. The court's docket entries
regarding the October 6, 2015, hearing reference a
"trial setting" and that the "case" was
set for hearing. The record reflects that all pending matters
were addressed at the October 6, 2015, hearing. The
transcript for the October 6, 2015, hearing begins:
"This matter came on regularly for hearing
…." The court's Judgment begins:
On the 6th day of October, 2015, this matter came
before the Court for final disposition.… The Court
took up Petitioners' Amended Petition for Declaratory
Judgment, filed December 4, 2014 (the 'Petition'),
and Respondent Mikkelsen's Motion for Judgment on the
Pleadings, filed May 22, 2015 (the 'Motion').…
At that hearing, the parties consented to the ...