may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Estate of Evelyn G. Winslow,
Bridget A. Logstrom, in Her Capacity
as Personal Representative of the Estate
of Raymond M. Winslow; et al.,
Filed April 22, 1997
Hennepin County District Court
File No. 958180
J. Marquis Eastwood, Michael J. Wahoske, Nicholas A.J. Vlietstra, Dorsey & Whitney, L.L.P., 220 South Sixth Street, Suite 1300, Minneapolis, MN 55402 (for Respondents)
Considered and decided by Randall, Presiding Judge, Harten, Judge, and Willis, Judge.
Appellant, the estate of Evelyn Winslow, challenges the district court's grant of summary judgment to respondents, arguing that Raymond Winslow breached his divorce agreement with Evelyn Winslow by amending a trust created pursuant to the agreement. We affirm.
Paragraph II of the divorce agreement provides that the trust "shall be revocable by the Husband except as hereinafter set forth" and describes the provisions for payments to Evelyn. Paragraph II, subparagraph F, provides that "[s]aid trust provisions as to said payments * * * shall not be revoked by the Husband until the death of the Wife." Paragraph II, subparagraph G, states that in the event that the trust terminated "by reason of the Wife's death," the trust was to be distributed to her estate.
In 1974, Raymond amended the trust to authorize the trustee to distribute trust principal to Evelyn at Raymond's direction. In 1977, Raymond and Evelyn amended the divorce agreement to change the amount of the bequests Evelyn agreed to make to Raymond's nephews. In 1989, Raymond again amended the trust, to provide that upon Evelyn's death the assets of the trust would be distributed according to his directions. When Evelyn died in 1993, Raymond, in accordance with the 1989 amendment to the trust, terminated the trust and distributed its assets to another trust in his name. Raymond died in 1994 and was replaced in this action by Bridget Logstrom as personal representative of his estate and Bridget Logstrom and Robert Roosen as trustees of the Raymond Winslow Revocable Trust.
1. Ambiguity in Agreement.
Appellant argues the district court erred in granting summary judgment because the divorce agreement is ambiguous. A contract is ambiguous if it is reasonably susceptible of more than one meaning. Republic Nat'l Life Ins. Co. v. Lorraine Realty Corp., 279 N.W.2d 349, 354 (Minn. 1979). If the terms of any of a contract's provisions are ambiguous, summary judgment is inappropriate. In re Turners Crossroad Dev. Co., 277 N.W.2d 364, 368 (Minn. 1979).
The district court concluded that the divorce agreement is not ambiguous and held:
The limitation on revocability contained in the Agreement is limited to payments to Evelyn, and is located in the Agreement immediately following a recitation of payments to be made to Evelyn during her lifetime. Immediately following the limitation is the provision for distribution of trust assets upon the death of Evelyn (distribution is to be made to her estate). The position of the limitation and the change in the language from "payments to be made to the Wife" to "distribute to the estate of Wife" means that the limitation on revocability does not apply to payments or distributions occurring after the death of Evelyn.
Appellant argues that because (1) the trust was set up to protect Evelyn and her share of the couple's community property and (2) all the subparagraphs of paragraph II were designed to protect Evelyn, all the subparagraphs of paragraph II are therefore irrevocable. The fact that trust provisions were to benefit Evelyn, however, does not make them irrevocable. See In Re Trust Created by Schroll, 297 N.W.2d 282, 284 (Minn. 1980) (concluding that settlor of trust has power to revoke trust to the extent that he reserves that power).
Appellant argues that the fact Raymond obtained Evelyn's consent to amend the divorce agreement in 1977 shows that he did not have the power to revoke the provision of the trust stating that the corpus would be distributed to Evelyn's estate upon her death. The 1977 amendment, however, required Evelyn to amend her will, so it was necessary for Raymond to obtain her consent. Further, the fact that Raymond and Evelyn signed an amendment to their divorce agreement did not deprive Raymond of his power to amend or revoke the trust, as long as he acted in conformity with the divorce agreement.
Appellant argues that subparagraph F of paragraph II of the divorce agreement is susceptible to several different interpretations, including (1) emphasizing to Evelyn that she would always receive at least $1500 per month, (2) emphasizing to Raymond that the discretionary payments would cease upon Evelyn's death, (3) representing the only exception to the revocable nature of the trust, and (4) representing the only revocable provision in paragraph II because the payments could be revoked after Evelyn's death. Appellant's first two suggested interpretations of subparagraph F are not inconsistent with the district court's reading of the agreement. Subparagraph F provides: "Said trust provisions as to said payments to be made to the Wife shall not be revoked by the Husband until the death of the Wife." The language of the provision indicates that payments to Evelyn during her lifetime, described in the preceding paragraphs, are irrevocable. Appellant's suggestion that subparagraph F is the only revocable provision in paragraph II, because the payments cease upon Evelyn's death, is unreasonable because the divorce agreement states that the trust is revocable, and no revocation power is necessary to end the payments upon Evelyn's death.
Appellant has not shown that the divorce agreement is reasonably susceptible of more than one meaning. The district court did not err in finding the agreement unambiguous. See Republic, 279 N.W.2d at 354.
Appellant claims that certain of the court's findings and conclusions that mention evidence other than the divorce agreement show that it considered extrinsic evidence in interpreting the agreement. Appellant argues that because the district court found that the divorce agreement was not ambiguous, it should not have considered extrinsic evidence. See City of Virginia v. Northland Office Properties Ltd. Partnership, 465 N.W.2d 424, 427 (Minn. App. 1991) ("The interpretation of a contract is a question of law if no ambiguity exists, but if ambiguous, it is a question of fact and extrinsic evidence may be considered."), review denied (Minn. Apr. 18, 1991). We find that it was unnecessary for the district court to rely on extrinsic evidence, and the record shows that although such evidence may have been before it, the district court did not rely on it to interpret the agreement.
2. Drafting of Agreement.
Appellant argues that summary judgment was inappropriate because the divorce agreement is so poorly drafted that a trial is necessary to interpret it. Appellant claims that (1) the district court ignored the fact that paragraph II states that the trust shall be revocable by Raymond "except as hereinafter set forth," (2) the subparagraphs in paragraph II are not necessarily in a logical order, (3) poor drafting precludes the conclusion that "payments" in subparagraph F was meant to exclude the distribution described in subparagraph G, and (4) the divorce agreement contains redundancies and inconsistencies.
The district court did not ignore the revocability clause in paragraph II. Rather, it interpreted the revocability clause in conjunction with the clause that follows it. The relevant language is
said trust shall be revocable by the Husband except as hereinafter set forth, the income from which shall be paid to the Husband during his lifetime, and shall provide as follows:
The subsequent paragraphs describe the trust. The district court properly concluded that the order of the paragraphs means that the "payments" made irrevocable by subparagraph F are the payments to Evelyn during her lifetime described before that paragraph and not any payments or distributions described after that paragraph. The alleged redundancies and inconsistencies are not material to the question of which trust provisions are revocable, and they are not so serious as to call into question the entire document.
3. Genuine Issue of Material Fact.
Appellant argues that the district court erred in granting summary judgment because there was a genuine issue of material fact in dispute. Specifically, appellant claims the fact that Raymond and Evelyn's 1977 amendment to the agreement appears to be missing a few words creates a genuine issue of material fact. The amended agreement reads: "In the event said trust shall terminate the Wife's death." The original document reads: "In the event said trust shall terminate by reason of the Wife's death." Appellant offers no reasonable suggestion regarding what the missing words could be, if not "by reason of." Moreover, this issue was not before the district court. Issues not presented to and considered by the district court will not be considered on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
4. 1977 Agreement.
Appellant argues that the district court improperly interpreted the 1977 amendment to the divorce agreement. The amendment changed Evelyn's obligation from one of bequeathing a portion of the trust corpus to Raymond's nephews to one of bequeathing $5000 to each of the three nephews. Appellant argues that a proper understanding of the 1977 amendment supports the conclusion that Raymond could not take the trust out of Evelyn's estate because otherwise Evelyn's estate would have a $15,000 obligation without assets to fund it.
Because this issue was not raised in the district court, it will not be considered on appeal. See id. It should be noted, however, that under the terms of the 1977 amendment to the divorce agreement, Evelyn could have made the bequest to the nephews in her will contingent on the trust being distributed to her estate.
5. Nevada Law.
Appellant argues that the district court's grant of summary judgment is contrary to Nevada law, under which the divorce agreement was to be construed, because Evelyn received no share of the parties' community property. Nevada courts divide community property
as shall appear just and equitable, having regard to the respective merits of the parties and to the condition in which they will be left by such divorce, and to the party through whom the property was acquired.
Weeks v. Weeks, 345 P.2d 228, 230 (Nev. 1959).
The divorce agreement was approved by a Nevada court in 1972. With regard to division of property, the agreement provided:
The wife shall retain as her sole and separate property all real and personal property of every kind whatsoever now owned, held or possessed by her.
That provision, in addition to the fact that money was provided to Evelyn by the trust during her lifetime, contradicts appellant's contention that Evelyn received no community property.
There is no genuine issue of material fact in dispute, and the district court did not err in its application of the law. The district court therefore properly granted summary judgment to respondents.