present a very interesting intersection between statue limitations law divorce law a cruel and discovery rolls i'm going to focus i believe on the merger doctrine issue raised in our brief and i would like to reserve five minutes for it before you get into that i know i have looked over the language of the document it is summer and first of all i say where is the duty when i say where is the duty i'm saying first of all when this guy his a life the state which means he couldn't spend the whole thing want to it says he doesn't hit the give them to anybody's pacifically where is the duty in where is also the reliance you know when you wake up thirty years later and say given that it was his commitment in this divorce if there was anything left certainly he is entitled to use the interest earned on earth off of the corpus but this is the  money runs out it wasn't money it was real estate i understand and one of the he and continue with am because he needs money that's an interesting issue and i think that in that instance he may have the ability to sell a portion of it maybe with a notice to the beneficiaries but he has a duty as if i do sherry of the land to not dissipate the corpus of the trust and the manner in which he goes about doing that is the subject for further examination for a court at that time were both the issue felix not even if he does not have that option under this agreement what he has an option of doing is deciding on disproportionate shares it has a presumption of equal shares but it allows him to make disproportionate shares again if there was a scenario where someone as a trustee to said ra i'm not giving to anyone then there would be an arguable issue for a court to decide they could come in in equity and say this clearly from all circumstances was not how this trust was intended to be used he wasn't intended allowed to give it to anyone else there were five specific beneficiaries at the time and whether he wants to give half to one and divide the other half of months the others that would be subject to litigation and examination at that juncture when he makes that decision because someone might have an equitable argument for example let's say he decides one of the children one of the five children original children died  going to give it all to that deaf child and not have you get the rest i think the other children would have an argument in a court of equity that that is basically a fraud or an inappropriate exercise of his fight to share duties that he's preaching that if mean if the merger doctrine does apply smells like malpractise and that is beyond the scope of this proceeding but i don't think the merger doctrine applies here i want to make sure  if we look at what the merger doctrine eleana case law is very specific as to why the merger doctrine exists it exists to prevent really litigation of the issues that were before the court at the time between the parties that were before the court at the time and in this case very interesting only in family court and a divorce an aria what are folks doing you have a husband and wife who are going to the court and the real issue before the court is the equitable distribution of the assets and the debts it is not whether a contract actually exists and whether someone breached that contract when that contract is given and that that property is given to jointly by those parents to two other children or five other children excuse me and so to apply the merger doctrine in this setting doesn't work these children were not they were all but one were adults they were not parties to this divorce they had no ability to come in and have any say so initially in this in fact there would be no assumption or no reason to believe that they would have a right to this property this isn't child support this isn't college expenses the decree has another provision for that this is real property that these parents jointly decided together to give to these five children they would have normally had no right to that property absent those parents deciding to do that and so once that decision is made then they have contractual rights and and rights as beneficiaries under that trust to that property and ultimately upon their father's death to the corpus of that trust  so the merger doctrine doesn't make sense to me here and why we should prevent children specifically who are not represented in a divorce proceeding to not be allowed to pursue certain i don't know for up to thirty years but we certainly are significant pressure decades and we're into decades we're past twenty we know that but the judgement is final as between those two people what has happened and many divorce decrees have provisions your case off with a life insurance policy is very clear other events happen down the road as far as the twenty year statute does that shows what the problem is here because what if the decree sets up something that doesn't come due or is not suitable until past twenty years down the road how is there a cruel here and i think that also highlights the problem with the merger to have isn't the situation certainly that is  occurring in the future i believe it is i believe the can did that father created a trust or certainly there is an argument that if the trust failed for one formality or another there was a constructive role resulting trust here but there is a trust here this document identifies this living has its probably somebody that didn't have one on one in  identifies who the donor is and who the trustee is doesn't really buy this is it does it says the mexico property in a different proceeding and again this is a motion to dismiss so all reasonable inferences to be drawn here both folks had to know and present to the court that there was evidence of this property would otherwise why would you be dividing this year would be perpetrating i suppose some sort of strange situation on the divorce that and it's obvious they know we've presented below the decree that he own mexico property in one nine hundred seventy three and there he saw says you can look to extensive evidence if you find  terms to be ambiguous you can look to extend that evidence to identify the property that's what's done here also if the terms are in big us you have issues of fact not to be decided on a motion to dismiss i think we'd like to hear your argument on the discovery rule how that might apply in this if the merger doctrine doesn't apply and the parties are not limited to simply the only cause of action can be for enforcement of the judgement if they are allowed to sue for a stoppel and a constructive trust on the express train just based of contract then those statute of limitations apply and the trial court didn't even go there because the discovery ru under your case law is clear that it would apply to all of those statutes we've argued that it applies to the twenty year but i will set that aside it is very clear it applies to the five and ten year statutes that were applied couple and so these children it was alleged did not discover that their father had dissipated the corpus of the trust until two thousand and eight when the father spoke to a son in law and they conducted a dee search and at that juncture they saw that the property had indeed been transferred away and brought suit a media play and we know that the sale of the property by his other son children occurred in two thousand and six and that's still a timely suit so again it becomes an issue of when did they discover what did they discover what was reasonable to discover those are fact issues if there is any dispute about them and those are also not appropriate for a motion to dismiss what they allege here is really no we didn't know he had essentially violated the to create the first time he would have violated that to create was when he transferred this property away and we did not find that out until two thousand and eight and we had no reason to believe before and no information before that he had done this or done anything different and that's reasonable given the record here given that they have to create an agreement and a contract on the record before a court that says i'm doing this i'm going to do this and that he is their father as well as the trustee of the property and how we should expect children whether we should expect children to follow up the yearly or constantly and say you have to transfer that yet or show me that you've done this in family relationships when the promise is already there like most people age and in russia take into account i think in terms of determining factual issues that's for the trier of fact as to what was reasonable given the circumstances of this family certainly coming out of a divorce and a divorce maybe like this there may have been no communication by the father to his children or very limited and their ability to talk to him may have been very limited they knew well were they supposed to know  as the issue of twenty years the date of that unit and not thereafter the language should the statute is very clear but i would point you to the weber case out of i believe it's montana with a  we do have a statute that doesn't talk like other statutes in terms of a cruel but again even though the statute says from the date of the judgment forward your case law does say that you cannot have the statute start to run if there's nothing to sue on until after the point in time of twenty years otherwise you have something meaningless and people can basically game the system and the right insurance policies he says are indicative i think of that as well in terms of you don't find out until way down the road that some when someone has died that they never made out the life insurance policy for you and what if they don't die for twenty years are you not entitled at that juncture to come in in force because nothing there was nothing there to enforce as far as you know until post twenty years same thing with payments of child support your case law is pretty clear and other payments due on property if they are beyond the twenty year time frame and they have not come due for the action hasn't occurred there's no violation of the to or the agreement then how can the statute run that would seem to me not what the law should be in a logical result and there are some treatises that indicate that exception to statutes that have that kind of and i appreciate the time what seems most striking here is that the trial court judge struggled and understood that the equities you couldn't even balance the balance all is in favor of the  wrongful conduct here the property is supposed to go to these children by the joint agreement about the parents there's no prejudice to the other side there's no issue of staleness agreement all of the documentation is there and all of the parties are life so it is unusual to reach and use something like a merger doctor they get stronger and who were not present and able to litigate or protect their rights or bring in their own lawyer if they could have at that time to say no refashion disagreement that way to hold them to a harsh statute of limitations the twenty year statute he didn't reach the other statutes and say later down the road when dad waits till the twenty first year and decides to transfer it away and begin a process of laundering it keep the money that you can't sue and it is particularly disturbing to do it on a motion to dismiss where there are allegations that are to be assumed true and correct and the children said we didn't know and we had no reason to now otherwise and that is supported by not just in a that any action upon that must be done within twenty years to revive it this judgment was entered in october of one nine hundred eighty they sued in november of two thousand and eight prevent these types of things of staleness there's at least two or three questions of the intent of the parties the guardian the vague language that the justices have pointed out in this document and then the duty of that it could have happened twenty years ago i think part of it is they intended someone else to have these properties he actually ended up giving them to other children so it's not as if the equities are he took his properties and used all the money for his own good i think it's easy in this light to pick my client as best an ideal one and one who don't please we have before us are just the complaints and when you it we're seeking money damages it's money damages and i think they're seeking a constructive trust and they have taken the money out of the other bonafide children's trusts i think there's a lot of other problems with that that i didn't want to get into the the problems of remedy here because i don't think i actually said a claim to begin with these two only two of the five children at the time of the divorce they don't have any actual interest  which is insufficient to intervene it twenty years later on i think what they're asking the court to do is to ignore some of the precedents create exceptions that have never been done this case weapon in terms of twenty five years ago in terms of another case where the parties intended the reason the legislature clearly wrote that twenty years and not thereafter was because they want to bring finality to judgment think it's clear that this clear order in one thousand a d was in forcible almost immediately the next week they could have gone in and said your have not set up the trust here's an the court were given some type of title timeline to do that they would have simply said you're going time to set the trustee mediately in those things were committed on the notion of a crew in this case is a little bit of a misnomer because it's different than the other cases public statutes where you are assumed to know what's in the public record that's one of the foundations of how our system works you can't say i wasn't aware which i'm driving was simply because you didn't know that and it sets a different a dangerous precedent if you allow the plaintiffs in this case to say we were unaware of our rights under a public judgment because then you can have defendants who are in the same positions and my attorney didn't tell me i didn't speak the language i was not aware of what i was required to do by the court and then where  case that they are too late like to respond to several points counsel talks about what the parties intended if a document is behave and there is a question of intent that is a factual determination and not appropriate for a motion to dismiss i think the intent is made clear on the face of the agreement they intended this property both parents to go to their children nevertheless he talks about contingent right case law makes clear that this kind of right is a that although contingent is a vested property right they have a vested property right to that corpus it may be contingent on their father dying just like life insurance proceeds but it is a property right and they have a right to come in and to see that the corpus isn't dissipated in appropriately and that by do sherry duties are not breached know that there's been any violation and in fact they're often hasn't been a violation of that there's no indication that anybody ever said shows the trusts we're supposed to do something it was the trust i think there were adults there was an adult representing the interests of these children well these children four of the five children were adults at the time of the divorce i don't think mother was representing their interests at that time this isn't a case where she's a friend of them as a minor coming at these are adult children for the most part one child i believe was in his teens and this was property they under normal circumstances they would have been entitled to parents decide to give it to them now do we want to put the onus on them when there is a written agreement on file before court stablish ing a trust a trustee relationship a fiduciary relationship and plus you have t the relationship a big there parrot what that should be somebody you can't trust to do the right fake as i don't see why that's a problem if it says that they're supposed to create a trust for me i'd like to see the process but when you can be childred what is reasonable for them interesting the judgment to read and they had that and if i am the average person child baby looking at that i see i might look at that say this is a trust for me a dad dies i'll get stuff they need we come from a very technical perspective as lawyers or at a minimum they say dad's got to create this just like the life the church cases i have dockery to bug my father it's going to cause a death problem is about the family to say give me the wife a church policy i've put a trust he did the right they go he's told me he's dead the right think these are all by the way factual questions your case was pretty clear that application o the discovery will is a factual issue again what was reasonable under the circumstances for these children to go what was it reasonable for them to do factual questions that were allowed if we find some reach those assets and the properties been sold to true but it was sold for two million dollars and the allegation is only one million was put in trust for the other children now you can go get those proceeds bad he had life insurance cases where parents instead of putting the life insurance proceeds in the name of the child or beneficiary who they had agreed to graft it to their state left it to somebody else and the court says no under my equitable powers that money comes back here go to discovery find out where it is it's going to be put in a constructive trust and by the way dad you haven't a bed this court ordered appoint a new trustee you want to apply for income during your lifetime go ahead but the school going to keep this corpus for these children because you've shown a propensity to violate a degree at a creepy or agreement that you made and i think that as one remedy breach of contract yes you get damages a breach of contract the property was turned around very quickly for two million dollars it is alleged that its actual value was closer to between six to ten if you're allowed to go to trial d iscovery prove that you can show that you were damaged he breached i do share a duty he sold this he wanted money really quick for whatever reason he didn't give it to the other child or property that's worth that much money there's no they don't have to say where's the trust these adult children i think it depends on where you want to put the trust is there it's on the record in the court the divorce court did they knew to do more than that is the question or do they need who do you want to put the burden on ery who's a valid who is also their parent and they say we've never seen him do anything wrong we had no knowledge he had done anything wrong and he didn't have to create the trust right away i guess that goes back to my what were they supposed to do this didn't have a date by which he had to create the trust trust him like go back to you know concerns about the draftsmanship and that is why you have remedies like constructive and resulting trust if there's one formality  nt express trust that fails but it's pretty clear let's take resulting trust resulting trust is about intent that's why we use or have you noticed you know we know what both these parents intended as sworn to a court and place here that's ok did he get what he intended so i think it is reasonable so they put him into court and he says but judge i don't have to create this trust yet and there are reasons in mexico where i wouldn't necessarily deed this i can have an oral trust you know there may be tax reasons there may be this there may be that he doesn't take an action contrary to his agreement until he transfers that property  doesn't take the action that is contemplated by the agreement the creation of the trust after and to the extent where years and to the extent that that element that element but that property in corpus remains intact and he doesn't do anything that indicates he's not going to pass it to his children so again my question i don't mean to ny answer your question is even people do that all the time but what were these children have said it and what would they have been able to enforce against him they until he takes an act that dissipates that is in clear violation of his agreement and they don't know that that act occurs and have no reason to know he hasn't told them guess what it's twenty one years and i transferred that by the way they have no reason to you know and the deeds wouldn't have showed them necessarily that there was a trust people keep their trust documents from their children all the time because they do various things i don't know that there would be an entitlement and that something they certainly could have litigated again if there's an element a technical element of an express trust what was his timeframe to do this that was certainly not an issue litigated in the divorce and is a factual dispute that should not be decided on a motion to dismiss we would ask this court to reverse the trial court vacate this and let the parties move forward with their discovery and trial