Don't Read This. It's Too Long.

In re: Palmer

2018 VT 134

By Elizabeth Kruska

This whole case sort of feels like it probably started as a good idea. Then when it was time to do the idea, or when the rubber met the road, or however you want to say it, things went sideways. I also want to warn you, fair reader, that the opinion is long and full of facts, and correspondingly, this summary is… less than summary. You may wish to stop reading right now because honestly, it’s long.

Mr. and Mrs. Palmer owned a sweet parcel of land that spanned 143 acres in Hinesburg, Shelburne, and Charlotte. Marjorie Palmer was no fool and put this land into an irrevocable trust for her kids. Well, let’s back up. Mr. and Mrs. Palmer wrote an initial trust in or around 1992. Mr. Palmer died… well, nobody knows when he died because the record isn’t clear on that. That seems like one of the two lowest hanging of all the possible factual fruits in this whole case.  

The trust in question appointed Mrs. Palmer’s 3 kids, Loren, Lorelei, and David F. as co-trustees. As we all know, a committee is always a great plan for effective decision-making. 

David F. died in 2012. His son, and sole heir, David C. wanted to step into his shoes and filed a motion in the probate court to open a trust estate and to replace the trustees. He alleged the trustees had mismanaged the trust property. Also, they refused to give him a copy of the trust. This does not bode well.

Generally speaking, everyone agreed that Mrs. Palmer had wanted to have this nice piece of land preserved. It was also used for maple sugaring, because Vermont. David C. and a cousin each leased different chunks of land for their own respective sugaring operations. 

The trust signed by Mrs. Palmer had some provisions. When she died, each of her grandchildren were supposed to receive a building lot in the Hinesburg portion of the land, if they had not already received one. If a grandchild didn’t want to, or didn’t specifically make an election for a building lot, that grandchild was supposed to receive $30,000. The building lots were meant for the kids to build houses for themselves to live in. This was probably meant to be nice and to create places for the grandchildren to live on the family land. In writing, it reads a smidge like Hotel California, irrevocable trust style. 

There were seven grandchildren at the time of the writing. Three had already selected building lots. Another subsequently picked a lot. One opted out and took his $30,000. That left two others – David C. Palmer and Mark Palmer. Within a year of their grandmother’s death (in 2001), they gave notice that they each wanted building lots. The trustees didn’t really do anything with this information, and the opinion is silent about why.

Ten-ish years later, David said he wanted a building lot in Shelburne. The trustees denied that request, as that piece of land was meant to be part of a conservation easement with the Vermont Land Trust. But they offered him a parcel in Hinesburg, which maybe they should have done ages ago, and which seems consistent with the language of the trust.

Now recall that at this point in our tortured timeline that David has moved to remove the other trustees. I’m perceptive enough to figure out that maybe these folks aren’t getting along very well. 

There was a purchase and sale agreement with the Vermont Land Trust for development rights to the 111 acres in Charlotte and Shelburne. David wouldn’t sign, and the agreement lapsed. Seeing that these people weren’t going to agree with one another, and the trust needed to keep moving, the probate court appointed a successor trustee to determine an equitable division of the trust. When they still couldn’t agree, the successor was appointed the trustee of just the 111 acre property. The court kept Lorelei and Loren (David’s aunt and uncle) in place as trustees for the rest of the estate. The court didn’t address at all what should happen with the fact that Mark still hadn’t gotten his parcel, and at this point just wanted his $30,000, and probably wanted to get the heck out of this dumpster fire of a family feud. And that’s a run-on sentence on purpose. Don’t @ me.

In 2015 the New Trustee met with the parties and hired some experts to help figure out the best way to split up this land. Based on the report of a forester, he proposed giving a particular parcel to David. It was contiguous with a piece of land he already owned and also with a building lot in Hinesburg. This seems like a great plan.

Except the trustees disagreed for several reasons. First of all the building lot they offered to David couldn’t actually be developed (why did they offer it to him as a building parcel if it couldn’t be built on? This is unclear.) because of state wastewater regulations. The New Trustee thought it wisest to ask the court to hold a hearing on the matter. At the hearing David basically said he still wanted that parcel and would get the wastewater situation figured out. The court, probably sick of this case at this point said, “fine.” 

The court then appointed New Trustee to be the Special Master of the 111 acre property. This person has gotten 2 promotions over the course of seven or so paragraphs. Before we get to the end of this case he may be some sort of Emperor, although I don’t think that’s a thing in probate cases.

The Special Master held a hearing. The trustees didn’t like a proposal from the Special Master because it would cut off Loren’s access to his sugaring operation (which seems inconsistent with the desires everyone agreed Mrs. Palmer had), and didn’t account for the topography of the property. They also said that since David hadn’t gotten a building permit yet for the property in Hinesburg – the one that doesn’t seem to be able to be built upon but maybe he could but we don’t know – that he should just get $30,000 instead. Also, Mark should get his $30,000. 

Then the trustees’ lawyer figured out there was an easement for access to the property. I wish they knew that sooner, because it might have saved some time. Anyway, the trustees had an idea that the land should be divided into eastern and western sections because of the topography, and also because it would create two lots where sugaring could continue and sap could conveniently run downhill, because gravity. Their other suggestion was that each David and Mark could get a 5-acre building lot from the Shelburne parcel of land, which, if I remember from several paragraphs ago, was what David wanted in the beginning. Special Master says, “hey, good idea, but this won’t work because the Town of Shelburne has zoning rules that would prevent this.” Instead he proposed a division of the property into a 42-acre western portion with 631 maple taps and a 69-acre portion with 1265 maple taps. He didn’t include the Hinesburg building lot because David said he wanted it despite the wastewater problems, and suggested David get a wiggle onand get a building permit. There was to be a sale of the development rights and some monetary compensation so that the different sides were both fairly compensated. 

The probate court accepted this proposal by the Special Master and also allowed the trustees to appeal that decision to the civil division. They filed several questions on appeal to the civil division. 

They also, and I am not making this up, asked David to do a DNA test in an effort to prove he was actually part of the family (I assume to say he can’t inherit anything if he’s not related), and sought to sell all the land in Hinesburg, including David’s wastewater problem land. 

The civil court determined that three of the questions were appropriate on appeal, and denied the motion for a DNA test on David. The trustees moved to reconsider, because unfortunately, this somehow now left the question about Mark receiving a building lot as an unanswered question. There were dueling motions for summary judgment. The court ruled that the probate court was clear in its ruling regarding the DNA test several years before, that the issue about Mark’s lot was resolved years before, and denied the motion to reconsider.

Are you still reading? Am I still writing? This is long.

The trustees’ motion for summary judgment was denied but David’s motion for summary judgment was granted and the case was sent back to the probate court. The trustees then appealed to the Supreme Court. They argued that the DNA test should have been ordered, the court shouldn’t have limited the scope of their initial appeal to the civil division, and the motion for summary judgment shouldn’t have been denied. SCOV reverses on the second issue but affirms the first and third.

Let’s talk about the genetic test. I had visions of daytime television in my head and people yelling “Jerry! Jerry! Jerry!” and throwing chairs as if we were on the Jerry Springer show. And if you think I didn’t fall into a rabbit hole on youtube trying to find the perfect Jerry Springer clip, then you’ve grossly misunderestimatedmy commitmentto pop culture links in SCOV summaries.

Back in 2014, the trustees filed a motion in the probate court to have a DNA test done on David Palmer to verify that he was actually his father’s child. When he was born he had a different last name on his birth certificate, and there was some question about his father’s ability to have children. But, that doesn’t change the fact David C. raised the younger David as his own child, and that Marjorie specifically named the younger David in her estate documents. It seemed clear to all involved that Marjorie meant to include him. The probate court denied the motion in 2014 and the trustees didn’t appeal. Then they renewed their motion in 2016, although it isn’t clear if this was because of new evidence truly calling David into question as being a rightful heir, or if it was just getting renewed.

Vermont didn’t have any law on this before, so looked to other jurisdictions. Other states recognize probate decisions about who is or isn’t an heir as a final appealable order. This makes sense, because if someone really isn’t an heir, you want to know that right out of the gate rather than go back and forth in probate court for years and then realize you’re fighting about the wrong thing. So, Vermont gives in to gentle sister-state peer pressure and determines that a decision about who is or isn’t an heir is a final appealable order. That means the trustees should have appealed the DNA test decision in 2014 and therefore, the ship has sailed.

With respect to the other questions, SCOV determines that the civil division should have permitted some of this to go forward. First of all, the issue of Mark’s building lot election was never resolved. This needs to go back to the civil court to be figured out. There is a genuine problem here relative to distribution of the trust and whether certain land can be developed. This can’t be done at the appellate level, so it’s got to go back to the civil court. Furthermore, figuring out what piece, if any, Mark gets may have an impact on the rest of the distribution. So if there are also outstanding issues regarding the fairness of the distribution as proposed thus far, it may be premature until the Mark piece gets resolved. 

With respect to the summary judgment issue, SCOV agreed that the civil division correctly ruled on David’s motion. 

So, after all that, the court affirmed the lower court, but reversed and remanded to the civil court to figure out the part about Mark’s building lot.

I hope I got everything here. This case was long and full of facts.