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Dahlke v. Jubie

Court of Appeals of Oregon

July 18, 2018

Jay Hulbert DAHLKE, Trustee of the Dahlke Marital Trust, and individually; and Kurt Marrifeld Dahlke, Plaintiffs-Respondents,
v.
Susan M. JUBIE, Trustee of the Sara L. Dahlke Living Trust, as an individual, Defendant-Appellant.

          Argued and submitted January 31, 2017

          Lincoln County Circuit Court 111995 David V. Cramer, Judge pro tempore.

          Jeffrey S. Frasier argued the cause for appellant. Also on the briefs was Chenoweth Law Group, PC.

          Charles A. Kovas argued the cause and fled the brief for respondents.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.

         Case Summary:

         Defendant appeals a judgment that imposed a constructive trust and directed her, as trustee of her mother's living trust, to transfer real property from the living trust to a marital trust. On appeal, she asserts that the trial court erroneously granted summary judgment to plaintiffs on a basis that plaintiffs did not advance in their summary judgment motion.

         Held:

         The trial court's basis for granting summary judgment differed significantly from the basis on which plaintiffs sought summary judgment. Accordingly, the trial court erred by granting summary judgment.

         Reversed and remanded.

         [292 Or.App. 805] ORTEGA, P. J.

         Defendant appeals a judgment that directed her, as trustee of the Sara L. Dahlke Living Trust (the living trust), to execute a deed transferring real property known as the Barge Inn to the Dahlke Marital Trust (the marital trust), and imposed a constructive trust for income derived from the Barge Inn after May 2010. On appeal, defendant assigns error to the trial court's grant of summary judgment to plaintiffs, arguing that the trial court improperly did so on a basis that was not advanced by plaintiffs, and alternatively, that genuine issues of material fact existed that precluded summary judgment. Because we agree that the trial court granted summary judgment on a basis that was not raised by the parties, we reverse and remand for further proceedings.

         The following background facts are undisputed. Kent and Sara Dahlke were married and living in Wyoming when Kent died testate in 2003. At that time, Sara and Kent had a joint checking account (the joint account) containing over $1, 400, 000. Sara, as the personal representative of Kent's estate, administered the estate in a Wyoming court with the help of Wyoming counsel. As part of the court proceedings, she listed the joint account as an asset of Kent's estate. In addition, she withdrew approximately $590, 000 from the joint account to satisfy cash bequests listed in Kent's will, including $100, 000 each to defendant (Sara's daughter), and plaintiffs, Jay and Kurt Dahlke (Kent's sons). Without the money from the joint account, Kent's estate would have had insufficient funds to satisfy the cash bequests made in his will. Kent's will also provided that, if Sara survived him, any residue of his estate would be paid into the marital trust for Sara's benefit. Kent designated Sara as the trustee of the marital trust. In August 2006, the Wyoming court entered a final decree of distribution for Kent's Wyoming estate.

         In 2008, Sara retained counsel to administer an ancillary probate in Lincoln County Circuit Court to deal with Kent's assets in Oregon, including the Barge Inn. During that process, Sara's Oregon attorney advised her that the joint account may have been mistakenly included as [292 Or.App. 806] an asset of Kent's Wyoming estate because, generally, a joint account becomes the property of the surviving party upon the death of the decedent joint owner-in other words, by its terms, the joint account became Sara's property when Kent died. The attorney suggested to Sara that the $590, 000 from the joint account that she used to satisfy the cash bequests in Kent's will could be considered a personal loan to Kent's estate. He further ...


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