DA 10-0621

IN THE SUPREME COURT OF THE STATE OF MONTANA

2011 MT 303N

IN THE MATTER OF THE TESTAMENTARY

TRUST UNDER THE WILL OF VICTOR D.

FINCO FOR THE BENEFIT OF ARLENE FINCO.

APPEAL FROM: District Court of the Fourteenth Judicial District,

In and For the County of Musselshell, Cause No. DP 82-18

Honorable Randal I. Spaulding, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Arlene R. Finco, self-represented; Helena, Montana

For Appellee:

James W. Thompson; Thompson Law Firm, PLLC; Billings,

Montana

Submitted on Briefs: November 16, 2011

 Decided: December 6, 2011

Filed:

__________________________________________

Clerk

December 6 2011
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Justice Beth Baker delivered the Opinion of the Court. 

¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal 

Operating Rules, this case is decided by memorandum opinion and shall not be cited 

and does not serve as precedent. Its case title, cause number, and disposition shall be 

included in this Court’s quarterly list of noncitable cases published in the Pacific 

Reporter and Montana Reports.

¶2 Arlene and Dennis Finco are the two children of Victor D. Finco, who died in 

1982. Under Victor’s will, his estate was distributed in part to a trust for the benefit of 

his then-wife Mary and the remainder was distributed equally between Arlene and 

Dennis, with Arlene’s share also put into a trust. At issue in this case is the trust 

created for Mary (the “Mary E. Finco Trust”). Victor’s will provided that Mary would 

receive the income from that trust, and the principal was to be shared on Mary’s death 

between Arlene and Dennis, with Arlene’s share again retained in trust for her benefit. 

Under the terms of Victor’s will, Dennis served as trustee for Arlene’s trust, which has 

since been depleted. Since 2003, he has served as trustee for the Mary E. Finco Trust. 

For both trusts, Dennis has submitted annual accountings to the court as required by 

law. 

¶3 When Mary died in 2010, Dennis petitioned to settle all the trust accounts and 

approve final distribution. The District Court granted Arlene a continuance of the 

hearing in October 2010 so she could attempt to find counsel, but denied a similar 
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request in November when, after a month, she had not shown good cause for an 

additional continuance. 

¶4 At the time of the hearing, and after other required distributions and deduction 

of court-approved fees, the principal remaining in the Mary E. Finco trust was 

$79,854.07. The court ordered that one-half be distributed to Dennis outright and onehalf to Dennis as trustee of the trust for Arlene. The court then entered an order 

authorizing Dennis to purchase a Lifetime Income Annuity for Arlene’s benefit with 

her half of the trust balance. Under the annuity, Arlene will be paid (by electronic 

funds transfer) about $202 per month. 

¶5 Arlene appeals, claiming that Dennis and his attorney have defrauded her out of 

her rightful share of Victor’s estate, have obstructed her bank account and caused it to 

be terminated, and that the District Court committed error by granting Dennis’s 

petitions without allowing her an additional continuance of the hearing. Although 

Arlene believes her father may have been murdered and his will procured by fraud, the 

proper time for challenging Victor’s will has long expired. Section 72-3-122(1)(c), 

MCA; Mont. R. App. P. 6(4). The issue before the Court on this appeal is whether, 

upon Mary’s death, it was appropriate for the District Court to approve a final 

settlement of accounts, termination of the trust and purchase of a lifetime income 

annuity for Arlene. 

¶6 The Montana Trust Code expressly authorizes proceedings concerning the 

affairs of a trust, including a proceeding to settle the accounts and pass upon the acts 
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of the trustee and to approve the termination of the trust. Sections 72-35-301(2)(e), 

(m), MCA. Dennis filed a petition in proper form seeking the settlement of accounts 

and termination of the trust. Section 72-35-302, MCA. He also petitioned for the 

Purchase of a Lifetime Income Annuity, demonstrating that such an annuity would 

fulfill the wishes of Victor D. Finco to provide a lifetime benefit to his daughter, 

Arlene. Notice of the petitions, and the hearing thereon, was given to Arlene. 

¶7 Notwithstanding Arlene’s concern regarding the amount of funds distributed to 

her from Victor’s estate and the method in which she is to receive the funds, a careful 

review of the record discloses no impropriety in the administration of funds under the 

terms of Victor’s will. There is no evidence to suggest additional funds are 

unaccounted for or that there has been any fraud in the administration of the trusts. To 

the contrary, Dennis has faithfully submitted detailed accountings for more than 

twenty years and his purchase of a lifetime income annuity will ensure Arlene’s 

continued receipt of funds from her father’s estate. 

¶8 “We will not overturn a court’s decision to deny a motion for a continuance

absent a showing of both an abuse of discretion and prejudice to the complaining 

party.” McCormack v. Andres, 2008 MT 182, ¶ 23, 343 Mont. 424, 185 P.3d 973. We 

have determined to decide this case pursuant to Section I, Paragraph 3(d) of our 

Internal Operating Rules, which provides for noncitable memorandum opinions. Our 

review of the record in this matter convinces us the District Court did not abuse its 
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discretion and Arlene was not prejudiced either by the denial of another continuance or 

by the court’s approval of Dennis’s petitions.

¶9 Affirmed.

/S/ BETH BAKER

We concur: 

/S/ JAMES C. NELSON

/S/ PATRICIA COTTER

/S/ MICHAEL E WHEAT

/S/ JIM RICE