Matter of Emelia Hirsch Trust , 2019 ND 264 ( 2019 )

Filed 11/01/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2019 ND 264In the Matter of the Emelia Hirsch, June 9, 1994, Irrevocable Trust
Timothy Betz, Respondent
v.
Emelia A. Hirsch, aka Emelia Hirsch,
aka Emilia Hirsch, Carolyn Twite
and Duane Hirsch, Petitioners and Appellees
and
Marlene Betz, Interested Party and Appellant
No. 20190162
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Gail Hagerty, Judge.
AFFIRMED.
Per Curiam.
Sheldon A. Smith, Bismarck, ND, for petitioners and appellees.
Marlene M. Betz, Burnsville, MN, appellant; submitted on brief.
Matter of Emelia Hirsch Trust
No. 20190162
Per Curiam.
[¶1] Marlene Betz appeals from a district court order denying her motion to
vacate a previous order, which reformed the trust, and to terminate the trust.
Betz argues (1) the 2008 order could not retroactively change the federal gift
tax liability, (2) the district court did not have the power to change the federal
gift tax liability from 1994 to 1999, (3) the district court did not have the power
to retroactively change the tax liability for the trustee in 2007, (4) the
beneficiaries did not retain rights to gifts after the trust reformation, (5) the
North Dakota Supreme Court has a duty to reconsider the 2008 appeal and
address the tax consequences, and (6) the trustees had to issue the final
accounting of the trust as instructed in the first declaration of amendments.
In its February 13, 2019 order the district court said, “all the tax liability has
in fact been addressed, and the entire liability was dismissed by the IRS
following an [a]ppeal.” The order reforming the trust was affirmed by this
Court on appeal. Matter of Emelia Hirsch Trust, 2009 ND 135, 770 N.W.2d
225. Several other attempts to have the previous order vacated have been
unsuccessful. See Matter of Emelia Hirsch Trust, 2017 ND 291, 904 N.W.2d
740; Matter of Emelia Hirsch Trust, 2016 ND 217, 888 N.W.2d 205; Matter of
Emelia Hirsch Trust, 2014 ND 135, 848 N.W.2d 719; Matter of Emelia Hirsch
Trust, 2013 ND 63, 832 N.W.2d 334.
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[¶2] Betz argues the district court abused its discretion in denying her motion
to vacate a previous order and terminate the trust. We conclude the court did
not abuse its discretion in denying the motion and we summarily affirm under
N.D.R.App.P. 35.1(a)(4). We decline to enter a prefiling order under N.D. Sup.
Ct. Admin. R. 58(7), as requested by the trustees. A prefiling order under N.D.
Sup. Ct. Admin. R. 58 should ordinarily be sought in the district court, and the
trustees already have a pending motion in district court.
[¶3] Gerald W. VandeWalle, C.J.
Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte
Allan L. Schmalenberger, S.J.
[¶4] The Honorable Allan L. Schmalenberger, S.J., sitting in place of Jensen,
J., disqualified.
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