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In re Charles T. Durosko Marital Trust

December 2, 2004


Appeal from the Superior Court of the District of Columbia (FID12-99). (Hon. Cheryl Long, Trial Judge).

Before Wagner, Chief Judge, and King and STEADMAN,*fn2 Senior Judges.

The opinion of the court was delivered by: Wagner, Chief Judge

Argued January 8, 2002

Appellants, William Henry Ziegler, as co-trustee, and Sarah Horning Ziegler, individually and as next friend of Ann B. Ziegler and Christine E. Ziegler, minors (Zieglers) filed an action against appellee, Charles T. Durosko (Durosko or settlor), to reform and construe an inter vivos trust established by Durosko (CTD Trust). In the trial court, the Zieglers argued that construction or reformation of the trust was required because its provisions regarding Durosko's continuing power to revoke were in conflict. Concluding that Durosko's power to revoke the CTD Trust was unambiguously set forth in the trust instrument and that there was no justification for the admission of extrinsic evidence to show a contrary intent, the trial court granted Durosko's motion for summary judgment. On appeal, the Zieglers argue that the trial court erred in granting summary judgment and declining to grant their motion to compel discovery. We hold that the trust instrument was ambiguous as to the continuing power of Durosko to revoke, making the admission of extrinsic evidence appropriate. We conclude further that: (1) having filed a timely affidavit under Super. Ct. Civ. R. 56 (f) seeking deferral of the motion for summary judgment pending further discovery, the Zieglers were entitled, under the facts presented, to have the court's ruling deferred; (2) the trial court erred in denying the motion to compel, since it could have led to the discovery of admissible evidence; and (3) Durosko is not entitled to a judgment as a matter of law on the present record. Therefore, we reverse and remand for further proceedings consistent with this opinion.


A. Factual Background

Appellant, William Ziegler, is the only child of Lorraine Ziegler Durosko (Mrs. Durosko), now deceased, and Henry Ziegler, Jr. Lorraine and Henry Ziegler, Jr. were divorced in 1966, and Lorraine married appellee, Charles Durosko, on or about December 31, 1994. In late 1997, the Duroskos engaged an attorney, Mary Hayes Lawrence, to provide estate planning services. On November 25, 1997, Mr. Durosko executed the document that is at issue in this appeal, the "Charles T. Durosko Revocable Trust Agreement" (CTD Trust).*fn3 The CTD Trust provides in Article 3 that upon Mrs. Durosko's death, if Mr. Durosko is surviving, the remaining trust assets are to be placed in the irrevocable Durosko Marital Trust (Marital Trust) and administered in accordance with Article 8 of the CTD Trust. However, Article 8 actually relates to the Family Trust, while Article 9 provides for the establishment of the Marital Trust, which Durosko stated was intended to be "an irrevocable qualified terminal interest property trust." In Article 9, Durosko appointed appellee, William Henry Ziegler, to serve with him as co-trustee of the Marital Trust. During Durosko's lifetime, and until the "division date," the co-trustees were to pay from the Marital Trust, the income to Durosko in quarterly installments or more frequently, and the principal, in the trustees' discretion, in accordance with Durosko's needs and desires.

A "division date" is described in Article 9 B as "the first date on or after [Durosko's] death." On such date, the co-trustees were to distribute the remaining assets as follows: (1) to the Personal Representative of Durosko's estate, "an amount equal to the federal and state estate taxes . . . payable by reason of the inclusion of part or all of the value of [the] Marital Trust in the computation of estate taxes payable upon [his] death by his Personal Representative"; and (2) the rest and remainder as directed by Article 6 of the CTD Trust. Article 6 provides for distribution to William Henry Ziegler, if living, and if not, for division of the trust estate into two equal shares, one-half distributable to William Ziegler's wife, Sarah Ziegler, if certain conditions exist, and one-half, among the surviving children of William Ziegler in accordance with Article 6.

In Article 14 of the CTD Trust, Durosko reserved to himself "at all times prior to [his] death," the following rights and powers pertinent to the appeal:

A. To cancel and terminate, or amend this Trust Agreement or any trust established under this Trust Agreement, in whole or in part, by notarized written instrument delivered to my Trustee, without the consent of my Trustee or any beneficiary.

B. To require my Trustee to distribute to me such assets of the Trust Estate as I may direct in writing.

On February 3, 1998, Durosko executed a First Amendment to the CTD Revocable Trust, amending paragraph A of Article 9. On July 22, 1998, Mrs. Durosko died in an automobile accident. On September 16, 1998, Durosko revoked the CTD Trust, conveyed the real property from the Trust to himself individually and delivered the personal property of the Trust to himself.

B. Procedural History

The Zieglers filed a verified complaint, requesting that the trial court construe or reform an inter vivos trust (the CTD Trust) established by appellee, Charles T. Durosko (Durosko). They alleged in the complaint that construction or reformation was required because provisions regarding Durosko's continuing power to revoke were in conflict. The Zieglers also requested in the complaint that the court impose a constructive trust on the assets that Durosko distributed to himself after purporting to revoke the CTD Trust. Durosko filed a motion for summary judgment, supported by his own affidavit in which he averred that he never intended the CTD Trust to become irrevocable prior to his death. He further stated in the affidavit that he had acquired the real property placed in the Trust through his late first wife, Ellen Loretta Durosko, and that he had placed Mrs. Lorraine Durosko's name on the deed without consideration. Durosko also supported the motion with a copy of a letter from an attorney, not the scrivener of the Trust instrument, expressing the opinion that it made "no sense for a widower's own Trust to be an 'irrevocable qualified terminal interest property trust.'" The Zieglers opposed the summary judgment ...

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