Opinion
No. 12–P–133.
2013-02-4
Rosemarie A. FIUMARA, executrix, & another v. Marisa K. FIUMARA & others.
By the Court (TRAINOR, BROWN & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs serve as the executrices of the estate of their father, Peter J. Fiumara (decedent). They brought the current declaratory judgment action to determine the status of a trust that the decedent purported to create in 1986. One of the executrices, Rosemarie A. Fiumara, is also the designated trustee of that trust, and both executrices are also beneficiaries of the trust and legatees under the decedent's will. The defendants are three grandchildren of the decedent who would collectively receive one-sixth of the remaining assets that the decedent had placed in the trust if those assets were distributed in accordance with the terms of the trust documents.
The parties agree that they have narrowed their dispute to two of the specific properties that had nominally been placed in the trust. They report that they have reached a settlement with regard to the disposition of the other assets; the terms of the settlement are not before us.
Following a jury-waived trial, a Superior Court judge ruled that the trust was a “sham” from its inception, because the decedent never intended “to relinquish his dominion over the properties placed in the Trust, let alone vest meaningful title in Rosemarie as Trustee.” See generally Ventura v. Ventura, 407 Mass. 724, 726 (1990) (“In order for a trust to be valid in the Commonwealth, it must unequivocally show an intention that the legal estate be vested in one person to be held in some manner or for some purpose on behalf of another.... In the case of an express trust, such as is alleged in the present case, this intention to separate legal and equitable control over particular property should be ascertained from the language of the whole [trust] instrument considered in the light of the attendant circumstances”) (internal quotation marks and citations omitted). The judge explained his ruling in a well-reasoned, thirty-eight page memorandum and order that included detailed and comprehensive factual findings. On appeal, the grandchildren have not demonstrated that any of the judge's findings are clearly erroneous, nor have they demonstrated any error of law. In fact, we agree with the judge's assessment that the question whether the decedent intended to part with control of the property at issue “is not close.” Although it does appear that the judge relied in part on the decedent's conduct after the trust documents were executed, there was no error in his doing so. Moreover, the fact that the designated trustee was never even informed of her responsibilities under the trust or who the beneficiaries were is by itself robust evidence that no valid trust was ever intended.
The grandchildren have a somewhat stronger argument with respect to the judge's finding that while their father had been the record owner of a sliver of land that purportedly had been placed into the trust, their father only nominally held that property for the benefit of the decedent. However, that finding is not clearly erroneous.
See Porreca v. Gaglione, 358 Mass. 365, 367–368 (1970). Lattuca v. Robsham, 442 Mass. 205, 216–217 (2004), is not to the contrary.
The grandchildren press various arguments based on estoppel, laches, unclean hands, and conflict of interest, but they did not preserve such arguments below and cannot be heard to raise them now on appeal. Peerless Ins. Co. v. Boyle, 422 Mass. 1011, 1012 (1996). Diamond v. Pappathanasi, 78 Mass.App.Ct. 77, 91–92 (2010). We therefore affirm the judgment. ,
The grandchildren cannot save their conflict of interest argument by framing it as a question of standing. As executrices of the decedent's estate, the plaintiffs plainly had standing to bring this action.
To ensure that our ruling is not misinterpreted, we offer the following additional comment. Because the decedent never divested himself of ownership of the properties during his life, those properties are properly considered part of the decedent's estate (as the judge ruled). However, this does not by itself answer the question of what the decedent intended to happen to the properties upon his death. That issue turns on the terms of the decedent's will, which was not included in the record. Both sides appear to assume that the grandchildren have neither an entitlement to a share of the properties under the will as written, nor a claim that the will should be reformed to make it consistent with the intent expressed in the trust documents (regarding the disposition of the properties upon the decedent's death). Such issues are not before us, and we express no opinion on them.
We deny the plaintiffs' request for attorney's fees.
So ordered.