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Stephens v. Mikkelsen

Court of Appeals of Missouri, Western District, First Division

April 4, 2017

TERRY STEPHENS AND JOHN HILGERT, SUCCESSOR TRUSTEES OF THE GEORGE J SLAHOREK REVOCABLE TRUST AGREEMENT DATED JUNE 12, 2007, Respondents,
v.
CHARLES N MIKKELSEN, A/K/A CARL N MIKKELSEN, ET AL., Appellants.

         Appeal 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.

         Charles N. Mikkelsen appeals the circuit court's Judgment finding Mikkelsen not an heir of Charles C. Kastner on Trustees'[1] 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 affirm.

         George 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."

         Slahorek 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.[2]

         On 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 law.

         On May 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.

         On June 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 Sudo[3] 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 biological family.

         On June 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.

         On 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. Mikkelsen appeals.

         In his 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).

         As a 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 ...

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