Opinion
21-P-773
05-16-2022
NELSON D. BLINN, trustee, [1] & another [2] v. ARRY DEWAYNE BAILEY MISCOVITCH & another. [3]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants, Larry Dewayne Bailey Miscovitch (Miscovitch) and Cody Bailey, appeal from a judgment entered after the denial of their motion for summary judgment and allowance of the cross motion for summary judgment brought by the plaintiffs, Nelson D. Blinn and Carolyn A. Mix, trustees of the Thomas R. Mix Family Trust of 1996. The defendants contend that the judge erred in concluding that Fla. Stat. § 63.172(1)(c) precludes Miscovitch, who was adopted as an adult, from inheriting from his adoptive parent. We vacate the order granting the plaintiffs' cross motion for summary judgment, and remand for further proceedings. 1
Background.
We summarize the record in the light most favorable to the party against whom the judge allowed summary judgment, here the defendants. See Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass.App.Ct. 515, 516 (2011) . The settlor, Thomas R. Mix, created both the Mix Family Trust (Family Trust) and the Mix Life Insurance Trust (Life Insurance Trust) on January 17, 1996. Thomas died in Florida on August 1, 2006, survived by his wife, Carolyn, his two daughters, Sally and Susan, and three grandchildren (Sally's biological children), Kelly, Lila, and Scott. Carolyn had a daughter from a previous relationship, Patricia, and Susan had no biological children. Carolyn was a beneficiary of the Family Trust, and Sally, Susan, Kelly, Lila, Scott, and Patricia were beneficiaries of both trusts.
Because family members share the same last name, we refer to them by their first names.
In 2015, Thomas's daughter, Susan, and Susan's husband adopted defendant Miscovitch in Tennessee. Miscovitch was forty-five years old at the time of the adoption. Susan died shortly thereafter on July 20, 2015. Defendant Cody Bailey is Miscovitch's adult son.
On May 1, 2020, Thomas's wife, Carolyn, died. The Family Trust provided income for Carolyn upon Thomas's death, and upon Carolyn's death for distribution of the trust's principal into 2 three shares: the "Children's Share" comprised eighty percent of the trust property; the "Grandchildren's Share" comprised fifteen percent of the trust property; and "Patricia's Share" comprised five percent of the trust property. The Grandchildren's Share was held in a continuing trust, income payable in equal or unequal parts, until such time as all grandchildren reached the age of twenty-five, at which point the principal was divided among the then-living grandchildren. A 2002 amendment to the Family Trust provided that upon Susan's death, Susan's share would be added to the Grandchildren's Share.
The amended Family Trust states: "In the case of a share allocated to the Donor's daughter, Susan R. Miscovitch, the Trustee shall pay to Susan R. Miscovitch, the entire income of such share at least quarter annually for life. In addition, the Trustee shall pay to Susan R. Miscovitch so much additional income and principal as the Trustee shall determine in its sole and absolute discretion. Upon the death of Susan R. Miscovitch, any property remaining in such share shall be added to and consolidated with the Grandchildren's Share and shall be administered as part of the principal thereof pursuant to the terms of Article 3.05."
Upon Carolyn's death the principal of the Life Insurance Trust was to be similarly distributed into three shares in the same proportions as the Family Trust: the Children's Share comprised eighty percent of the trust property; the Grandchildren's Share comprised fifteen percent of the trust property; and Patricia's Share comprised five percent of the 3 trust property. Both trusts state, "[i]n interpreting the words 'child,' 'children,' and 'issue' and similar words, a person who is legally adopted shall be deemed to be the child of his adoptive parents." All parties now agree that the Mix Family Trust and Life Insurance Trust are governed, administered, and interpreted according to Florida law.
The plaintiffs brought a complaint for declaratory judgment requesting a declaration that Susan's adult adopted child Miscovitch did not qualify as a grandchild under the trusts because inheritance by an adult adopted grandchild was inconsistent with Thomas's intent, and that Thomas did not intend to provide an inheritance for "unknown" grandchildren who were adopted as adults. The plaintiffs requested a declaration that Miscovitch was not entitled to inherit under the trusts and a modification of both trusts to prevent Miscovitch from inheriting.
They also asserted that adopted adults are excluded from being a beneficiary of the adoptive parent under Tennessee law. This argument is not pressed on appeal.
The defendants filed a motion for summary judgment on all counts, requesting a declaration that Miscovitch was entitled to distributions under the terms of both trusts and that the court decline to modify the trusts' language. The plaintiff trustees filed a cross motion for summary judgment on all counts, 4 requesting a judgment declaring that Miscovitch is not a child or grandchild under the terms of the trusts and thus is not entitled to trust distributions.
After a hearing, the judge granted the plaintiff trustees' motion for summary judgment, concluding that Miscovitch was not entitled to distributions under the trusts because Fla. Stat. § 63.172, as the judge interpreted it, "prohibits an adoptee from automatically gaining inheritance." The judge further rejected the trustees' assertion that trust beneficiaries Scott, Kelly, and Lila should have been notified of Miscovitch's adoption under Florida and Tennessee law, instead agreeing with the defendants' contention and reasoning that "Scott, Kelly, and Lila's interest in the Trusts were not present, immediate, and direct." Concluding that Fla. Stat. § 63.172 barred Miscovitch from receiving under the trusts, the judge did not address the trustees' remaining claims. 5
The defendants do not press this contingency argument on appeal, and it is waived. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
Those claims were that (1) the adoption constituted a fraud upon the court, (2) the donor's intent must be considered in interpreting the trusts, and (3) the court should modify the language of the trusts to align with the donor's intent. The judge also concluded that the lack of a notice requirement under Tennessee law did not constitute a repugnant departure from Florida law that would justify voiding the adoption as an exception to the Constitution's Full Faith and Credit Clause.
On appeal, the parties no longer rely on Tennessee law. The defendants contend that the judge's interpretation of Florida law was incorrect because the inheritance rights of adopted individuals are controlled by the Florida Probate Code, Fla. Stat. § 732.108(1), and Florida Trust Code, Fla. Stat. § 736.1102, as well as Fla. Stat. § 63.172, and that adopted persons are permitted to inherit under Florida law. The plaintiff trustees maintain that the judge's interpretation was correct and, alternatively, if the interpretation was incorrect, that disputes over genuine issues of material fact exist and preclude a grant of summary judgment in the defendants' favor.
Discussion.
We review a summary judgment record de novo to determine "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Furthermore, since the trusts so dictate, and the parties agree, Florida law governs our analysis.
1. Law in effect.
As a matter of Florida law, "courts look to the law in effect when a testamentary trust terminates rather than the law at the time the will was written or when the testator died to determine whether an individual comes within a class of remaindermen designated by will to take at the expiration of an intermediate or life estate." 6 In re Will of Martell, 457 So.2d 1064, 1066 (Fla. Dist. Ct. App. 1984). Here, the terms of the trusts state that the principals will be disbursed upon Carolyn's death. Carolyn died in May 2020, after Miscovitch's adoption. The date of her death is the controlling date for purposes of the applicable law, and we therefore must consider whether Miscovitch was entitled to inherit under the terms of the trusts as of that date.
2. Inheritance rights of adoptees.
Florida Stat. § 63.172 provides in pertinent part:
"(1) A judgment of adoption, whether entered by a court of this state, another state, or of any other place, has the following effect:
"(b) It terminates all legal relationships between the adopted person and the adopted person's relatives, including the birth parents, except a birth parent who is a petitioner or who is married to a petitioner, so that the adopted person thereafter is a stranger to his or her former relatives for all purposes, including the interpretation or construction of documents, statutes, and instruments, whether executed before or after entry of the adoption judgment, that do not expressly include the adopted person by name or by some designation not based on a parent and child or blood relationship, except that rights of inheritance shall be as provided in the Florida Probate Code.
"(c) Except for rights of inheritance, it creates the relationship between the adopted person and the petitioner and all relatives of the petitioner that would have existed if the adopted person were a blood descendant of the petitioner born within wedlock. This relationship shall be created for all purposes, including applicability of statutes, documents, and instruments, whether executed before or after entry of7
the adoption judgment, that do not expressly exclude an adopted person from their operation or effect"(Emphasis added). The judge construed the phrase "[e]xcept for rights of inheritance" in subsection (c) to mean that the statute "prohibits an adoptee from automatically gaining inheritance." However, the judge also went on to construe the statute to preclude an adopted adult from inheriting under any circumstances. This was error.
The phrase "except for rights of inheritance" in subsection (c) should be construed in conjunction with all provisions of the statute. "[I]t is a well-settled principle of statutory construction that 'all parts of a statute must be read together in order to achieve a consistent whole.'" Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla. 2006), quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla. 1992). The immediately preceding subsection, Fla. Stat. § 63.172(1)(b), provides that "rights of inheritance [of adoptees] shall be as provided in the Florida Probate Code." This language regarding inheritance, added in 2001 and repeated in briefer form immediately thereafter in subsection (c), evinces a legislative intent to interpret the inheritance rights 8 of adoptees in a manner consistent with the Florida Probate Code.
Florida Stat. § 63.172(1)(b) & (c) were amended in 2001. 2001 Fla. Laws c. 22 6, § 1. The amendment struck the words "inheritance and" from the list of purposes listed in subsections (b) and (c), and added the reference to the Florida Probate Code to subsection (b).
The Florida Probate Code permits adoptees to inherit. See Fla. Stat. § 732.507(1) (2007) ("Neither subsequent marriage, birth, nor adoption of descendants shall revoke the prior will of any person, but the pretermitted child or spouse shall inherit as set forth in ss. 732.301 and 732.302, regardless of the prior will") . "[A]dopted children are the issue and the lineal descendants of their adopting parents for purposes of inheriting under a will or trust instrument." Lewis v. Green, 389 So.2d 235, 241 (Fla. Dist. Ct. App. 1980) . We see no reason to believe that the Florida Legislature intended to foreclose adoptees from inheriting when it amended the statute in 2001.
Florida Stat. § 732.507, as appearing in 2007 Fla. Laws c. 74, § 14, was amended shortly after the judgment entered in this case, but subsection (1) remained unchanged. See 2021 Fla. Laws c. 183, § 2. This language first appeared in this iteration in 2001 Fla. Laws c. 226, § 45.
In addition, the Florida Probate Code permits an adopted child to inherit under the laws of intestate succession, further evincing the Legislature's intent to permit adoptees to inherit. See Fla. Stat. § 732.108(1) ("[f]or the purpose of intestate 9 succession by or from an adopted person, the adopted person is a descendant of the adopting parent and is one of the natural kindred of all members of the adopting parent's family"). "In view of the clear public policy expressed in the statutes of [Florida], there is no longer any reason to treat an adopted child differently than a natural child, for purposes of intestate or testate inheritance." Lewis, 389 So.2d at 241.
Likewise, "[t]here is no statutory basis to preclude an adult adoptee from inheriting under a trust." Dennis v. Kline, 120 So.3d 11, 19 (Fla. Dist. Ct. App. 2013). Again, like the Florida Probate Code, the Florida Trust Code permits an adopted child to inherit under the laws of intestate succession. See Fla. Stat. § 736.1102 ("[t]he laws used to determine paternity and relationships for purposes of intestate succession apply when determining whether class gift terminology and terms of relationship include adopted persons"). Both the Florida Probate Code and the Florida Trust Code permit inheritance by adult adoptees.
It was therefore error to conclude that Miscovitch had no right of inheritance as a matter of law under any circumstances. "[R]ights of inheritance are afforded to adoptive relatives by the probate code, . . . and any statutes or instruments that specifically treat adoptive relatives differently would be followed according to their text." S.S. Stephens, Florida 10 Family Law § 6:11 (2021 ed.). The terms of both trusts state, "[i]n interpreting the words 'child,' 'children,' and 'issue' and similar words, a person who is legally adopted shall be deemed to be the child of his adoptive parents." Thus, the trusts provide a basis for a claim by an adoptive child.
3. Settlor's intent.
Notwithstanding the foregoing, the defendants are not entitled to summary judgment because, as the judge concluded and the defendants did not contest in their opening brief, there are genuine issues of material fact regarding the plaintiff trustees' remaining claims. See Campbell v. Riggs, 310 So.3d 68, 70-71 (Fla. Dist. Ct. App. 2021). The dispute as to whether Thomas intended Susan's adult adopted child to inherit under the trusts is one that is especially ill-suited to decision on summary judgment. "Whether the adult adoption is in derogation of a settlor's intent is an entirely separate issue. . . . Generally, the intent of a party in creating a document is a question of fact that should not be decided on a summary judgment" (quotation and citation omitted). Dennis, 120 So.3d at 19, 21. Here, the differential treatment of Thomas's stepdaughter Patricia under the terms of the trusts, and the 2002 amendments providing for transfer of Susan's interest to the Grandchildren's Share, are sufficient to create a factual question whether the term "a person who is legally 11 adopted" was intended to apply to the adult adopted child of Susan.
Conclusion.
The judgment and declaration entered in favor of the plaintiff trustees is vacated, and the case is remanded. On remand, the judge may consider all issues not previously decided.
So ordered.
Sullivan, Massing & Shin, JJ. 12
The panelists are listed in order of seniority.