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In re Hirsch

Supreme Court of North Dakota

June 26, 2014

In the Matter of the Emelia Hirsch, June 9, 1994, Irrevocable Trust; Timothy Betz, Respondent and Appellant
v.
Emelia A. Hirsch, aka Emelia Hirsch, aka Emilia Hirsch, Carolyn Twite and Duane Hirsch, Petitioners and Appellees

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Gail Hagerty, Judge.

AFFIRMED.

Timothy Betz, Hayden Lane, Fayetteville, N.C., respondent and appellant; submitted on brief.

Sheldon A. Smith, Bismarck, N.D., for petitioners and appellees; submitted on brief.

Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Everett Nels Olson, S.J., Gerald W. VandeWalle, C.J. Opinion of the Court by Kapsner, Justice. The Honorable Everett Nels Olson, S.J., sitting in place of Sandstrom, J., disqualified.

OPINION

Page 720

Matter of Emelia Hirsch Trust

Kapsner, Justice.   

[¶1] Timothy Betz appeals from an amended judgment awarding the trustees of the Emelia Hirsch Trust $5,000 plus interest for attorney fees and costs and from an order denying his post-judgment objection to costs and his request for a hearing. We affirm the amended judgment and the order denying Betz's objection, and we direct him to pay attorney fees in the amount of $1,000 plus double costs for his frivolous appeal under N.D.R.App.P. 38.

I

[¶2] In 1994, the " Emelia Hirsch June 9, 1994, Irrevocable Trust" was created, and Emelia Hirsch transferred assets to the trust. The trust beneficiaries were Emelia Hirsch's three children, Carolyn Twite, Marlene Betz, and Duane Hirsch, and Emelia Hirsch's ten grandchildren, including Timothy Betz. The trust became the source of protracted litigation and has divided the family into two factions, with Emelia Hirsch, Carolyn Twite and her children, and Duane Hirsch and his children contending Emelia Hirsch did not intend to create an irrevocable trust and give up control of her property during her lifetime. Marlene Betz and her children, including Timothy Betz, claimed the trust was irrevocable and they were entitled to benefits under the terms of the trust.

[¶3] In 2003, Emelia Hirsch petitioned to dissolve the trust. After further proceedings, Carolyn Twite and Duane Hirsch moved in April 2008 to reform the trust from an irrevocable trust to a revocable trust, with Emelia Hirsch retaining control over the trust property. The district court thereafter granted reformation of the trust after allowing the Betz faction further opportunity to comment or object to the reformation.

[¶4] This Court affirmed the reformation of the irrevocable trust to a revocable trust, declining to consider issues raised by Timothy Betz for the first time on appeal and also concluding his appeal was not frivolous and refusing to ...


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