In the Matter of the Matthew Brandon Waltman Irrevocable Trust ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1750
Filed February 19, 2020
IN THE MATTER OF THE MATTHEW BRANDON WALTMAN IRREVOCABLE
TRUST n/k/a RICHTER FAMILY FARM TRUST UNDER AGREEMENT DATED
December 3, 2012
MATTHEW B. WALTMAN,
Plaintiff-Appellee,
vs.
KAREN RICHTER NUTKIEWICZ, Individually, and as TRUSTEE OF RICHTER
FAMILY FARM TRUST,
Defendant-Appellant,
and
GARY D. RICHTER, Individually, as TRUSTEE OF THE RICHTER FAMILY
FARM TRUST, and as TRUSTEE OF THE DONALD E. RICHTER AND
LAVONNE RICHTER IRREVOCABLE TRUST; KATHY A. RICHTER,
individually, and as TRUSTEE OF THE RICHTER FAMILY FARM TRUST; and
DONALD R. RICHTER and LAVONNE RICHTER IRREVOCABLE TRUST
UNDER AGREEMENT DATED January 12, 2001,
Defendants.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Joel A.
Dalrymple, Judge.
A trust beneficiary appeals district court orders refusing to reconsider its
denial of her request to invalidate a modification agreement. AFFIRMED.
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Karen Richter Nutkiewicz, Moorpark, California, self-represented appellant.
Larry F. Woods, Oelwein, for appellee Matthew B. Waltman.
Robert S. Hatala of Simmons Perrine Moyer Bergman PLC, Cedar Rapids,
and Matthew L. Preston and Ann C. Gronlund of Brady Preston Gronlund PC,
Cedar Rapids, for Gary D. Richter.
Michael A. Dee, Robert D. Hodges, and James W. White of Brown, Winick,
Graves, Gross, Baskerville & Schoenebaum, P.L.C., Des Moines, for appellee
Kathy A. Richter.
Considered by Tabor, P.J., and Mullins and May, JJ.
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TABOR, Presiding Judge.
Beneficiary Karen Richter Nutkiewicz seeks to invalidate a September 2018
court order approving a plan to make property distributions and then terminate a
family farm trust.1 Karen twice filed motions to reconsider the district court’s order,
contending she did not receive “any notice whatsoever” of the September 10
hearing on trust matters. The district court refused to reconsider its ruling. Karen
appeals that refusal. Because we find no error in the district court’s analysis of the
notice and service provided to Karen and her former counsel, we affirm.
I. Facts and Prior Proceedings
This case stems from the Donald E. Richter and Lavonne Richter
Irrevocable Trust (“land trust”). Donald and Lavonne had three children: Gary,
Kathy, and Karen. The three siblings were beneficiaries of that land trust. Gary
was appointed as trustee.
The land trust provided for terminating distributions once each beneficiary
reached the age of fifty-five. Donald, Lavonne, and their children executed a
modification agreement in January 2006 purporting to extend the age to sixty-five
when each beneficiary could receive his or her terminating distribution. Matthew
Waltman, Kathy’s son, held a vested remainder interest in the land trust and had
reached the age of majority but did not sign the modification agreement. Karen’s
three children also held vested remainders in the land trust but were minors in
2006. No one represented the interests of the minor beneficiaries in connection
with the modification agreement. Gary and Kathy later acknowledged the
1Because several parties share the same last name, our opinion will use first
names for clarity.
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agreement failed to comply with Iowa Code section 633A.2203 (2018), which
governs the termination and modification of irrevocable trusts. After this
acknowledgment, both siblings filed a joint motion to invalidate the modification
agreement and order terminating distributions from the land trust immediately.
Gary and Kathy agreed to a plan that would terminate the land trust by
making equal distributions to each of the three beneficiaries once the court
declared the 2006 modification invalid. Anticipating a dispute over the distribution,
the parties scheduled a two-day mediation session. Gary contends he spoke with
Karen several times before the mediation. He notified Karen ahead of the session,
but she refused to attend. She also declined to have her attorney attend. The
mediation occurred in June 2018 without Karen. Both Gary and Kathy attended
and reached an agreement.
In August 2018, Kathy and Gary (as trustee and individual beneficiary)
submitted their joint motion to the district court asking to invalidate the 2006
modification agreement and requesting approval of their termination plan. That
same month, the Court ordered the parties to do the following:
1. The Parties are directed to serve notice of the Joint Motion and
this Order upon the Land Trust beneficiaries on or before August 16,
2018. The Parties may serve such notice via email.
2. Any and all objections to the Joint Motion must be filed with
the Court no later than September 6, 2018, or be forever barred.
3. Hearing on the Joint Motion shall be Monday, September
10, 2018, at 9:00 a.m., at the Black Hawk County Courthouse in
Waterloo, Iowa. A half day of court time is allotted for this hearing.
The clerk delivered the order to the parties through the judicial branch’s
electronic document management system (EDMS).
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None of the beneficiaries objected by the district court’s September 6
deadline. After the September 10 hearing, the court entered an order granting
Kathy and Gary’s joint motion to invalidate the modification agreement and
approving termination of distributions from the land trust.
About two weeks later, on September 25, Karen—representing herself—
moved to reconsider the court’s order. Karen asserted she received no notice of
the proceedings. She filed a declaration stating Gary contacted her to ask whether
she had received “anything from his lawyer” and she advised him that she had not.
Karen claimed her email account was not disabled yet she did not receive notice.
She confirmed two of her three children did receive email notice but were unable
to respond because one was out of the country and another was moving to a
college apartment.
On September 26, the district court denied Karen’s motion to reconsider.
The district court emphasized that Karen’s attorney, Matthew Gardner, received
EDMS notification from the clerk’s office. Attorney Gardner had not yet moved to
withdraw so he remained Karen’s attorney of record. The court also highlighted
that Kathy’s attorney, Mike Dee, served Karen and her children by first class mail,
and Gary’s attorney, Robert Hatala, submitted an affidavit alleging service upon
two of Karen’s children. The next day, attorney Gardner filed a motion to withdraw
as Karen’s counsel. The district court granted Gardner’s motion.
On October 2, 2018, Karen filed another motion to reconsider. This time
Karen alleged her siblings attempted service at an address in West Lake Village,
California, where she had not lived since 2011. Karen also blamed attorney
Gardner for failing to notify her of the ongoing proceedings and failing to timely
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withdraw. Gary resisted the motion to reconsider, contending Karen continued to
provide the West Lake Village address to the court. The district court denied the
second motion to reconsider with no additional explanation. Karen now appeals.
II. Scope and Standards of Review
Proceedings concerning trusts are tried in equity. See Iowa Code
§ 633A.6101 (giving probate court subject matter jurisdiction over “proceedings
concerning the internal affairs of a trust”). We review equity cases de novo. In re
Tr. No. T-1 of Trimble, 826 N.W.2d 474, 482 (Iowa 2013). When assessing factual
findings, particularly on witness credibility, we give them weight, but they are not
binding on us. Id. We review the district court’s interpretation of rules and statutes
for correction of legal error. Id.III. Analysis
As a self-represented litigant, Karen contends the district court violated her
right to due process by refusing to reconsider its order granting her siblings’ motion
to invalidate the modification agreement. She argues she was “not given proper
notice of the motion and was essentially defaulted when the court granted the
motion.” Karen also alleges the district court erred in finding that her siblings
properly served her with their motion.
Before reaching the merits of Karen’s claims, we address error
preservation. That task is difficult because her appellant’s brief fails to include “[a]
statement addressing how the issue was preserved for appellate review, with
references to the places in the record where the issue was raised and decided.”
Iowa R. App. P. 6.903(2)(g)(1). Failure to comply with the rules of appellate
procedure may lead to summary disposition of an appeal. See Hanson v. Harveys
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Casino Hotel, 652 N.W.2d 841, 842 (Iowa Ct. App. 2002). But where an omission
does not hinder our consideration of the issue raised, we will decide it on the
merits. See State v. Stoen, 596 N.W.2d 504, 507 (Iowa 1999). On Karen’s due
process contention, we cannot find in the record where she received a ruling on a
constitutional claim. Thus we deem that issue waived and, accordingly, give it no
further consideration. See Runyon v. Kubota Tractor Corp., 653 N.W.2d 582, 584
(Iowa 2002). On her claim regarding proper service, we overlook the rule violation
and proceed to the merits.
On the service issue, Gary defends the district court’s rulings. 2 He notes
attorney Gardner represented Karen “at all relevant times before and during the
September 10, 2018 hearing.” And as the district court determined, Karen
“received proper notice through counsel via EDMS.” To support his position, Gary
relies on Iowa Rule of Civil Procedure 1.442(2), Iowa Rule of Electronic Procedure
16.315(1)(b), and Iowa Code section 633A.1109(1).3
Rule 16.315(1)(b) states:
When a document is electronically filed, EDMS serves the document
on all parties who are registered filers. See rule 16.201(11)
(definition of “electronic service”). Service occurs by the posting of a
notice of electronic filing or presentation into the filer’s EDMS
account along with a link to the document or documents presented
or filed. The posting of the notice of electronic filing or presentation
constitutes service of the document for purposes of the Iowa Court
Rules. No other service on those parties is required.
2 Kathy joins the appellee’s brief filed by Gary’s counsel.
3 The trust code specifically describes methods of notice and document delivery.
See Iowa Code § 633A.1109. That section allows notice, including notice of a
judicial proceeding, to be “accomplished in a manner reasonably suitable under
the circumstances and likely to result in receipt of the notice or document.” Id. §
633A.1109(1). “Permissible methods of giving notice or sending a document
include first-class mail, personal delivery to a person’s last known place of
residence or place of business, or by properly directed electronic mail.” Id.
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The district court’s August 2018 order directed Gary and Kathy to serve
notice of their joint motion and the court’s order on the land trust beneficiaries.
That order allowed the parties to “serve such notice via email.” Under Iowa Rule
of Civil Procedure 1.442(2), “[s]ervice upon a party represented by an attorney
shall be made upon the attorney unless service upon the party is ordered by the
court.”
As Gary contends on appeal, it is undisputed that attorney Gardner received
timely notice of the joint motion and the court’s order setting hearing through EDMS
under rule 16.315(1). Service upon attorney Gardner was proper.4 Because
Karen’s attorney of record received notification in compliance with the EDMS rules,
we affirm the district court’s denial of her motions to reconsider.
AFFIRMED.
4 The record shows Gardner was in contact with Karen. When Karen filed her
declaration with the court, she included an email exchange with Gardner. That
exchange revealed Gardner forwarded Karen an email from attorney Hatala, who
represented Gary. That August 17 email stated: “As you know, Gary and Kathy
have filed a joint motion with the court asking the court to approve a proposed
distribution of the Land Trust property.” So Karen was not in the dark about the
trust proceedings.