[Cite as Wyper v. DuFour, 2019-Ohio-1035.]




                           IN THE COURT OF APPEALS OF OHIO
                               SIXTH APPELLATE DISTRICT
                                     WOOD COUNTY


Margaret E. Wyper, et al.                              Court of Appeals No. WD-18-050

        Appellees                                      Trial Court No. 17 CV 311

v.

Nadine DuFour, et al.                                  DECISION AND JUDGMENT

        Appellant                                      Decided: March 22, 2019

                                                *****

        Kevin J. Kenney and Christopher Hensien, for appellees.

        Christopher F. Parker, for appellee Steven N. Skutch, Successor Trustee.

        Marvin A. Robon and R. Ethan Davis, for appellant.

                                                *****

        ZMUDA, J.

                                             I. Introduction

        {¶ 1} Appellant, Nadine DuFour, appeals the judgment of the Wood County Court

of Common Pleas, ordering her to terminate her possession of property located at 29666

Chatham Way, Perrysburg, Ohio (the “Chatham property”), and granting her possession

of the property located at 11149 River Bend Court West, Perrysburg, Ohio (the “River

Bend property”). Finding no error in the trial court’s judgment, we affirm.
                         A. Facts and Procedural Background

       {¶ 2} This appeal involves the application of certain provisions contained in the

Dan E. Wyper Trust Agreement. Dan E. Wyper, the settlor of the trust established under

the trust agreement, died in October 2016. Thereafter, appellant became the trustee of the

trust. Eight months later, appellees, Margaret and David Wyper, filed a “complaint for

declaratory judgment, breach of trust, and damages,” in which they sought to remove

appellant as trustee based upon her alleged failure to make distributions to them in

accordance with the terms of the trust agreement. Margaret and David are Dan’s

children.

       {¶ 3} On January 10, 2018, the trial court granted appellees’ motion to remove

appellant as trustee, and subsequently appointed appellee, Steven Skutch, as successor

trustee. Thereafter, Skutch requested assistance regarding the disposition of the Chatham

property and the River Bend property. Margaret and David wished to sell the Chatham

property, which was transferred into the trust by Dan after he bought it in August 2015.1

However, appellant was a resident of the Chatham property, having moved from the

River Bend property with Dan prior to his death. After moving to the Chatham property,

Dan leased the River Bend Property to a tenant on a one-year lease commencing on

July 1, 2016, and automatically renewing on a month-to-month basis upon the expiration




1
  It appears from the record that the Chatham property is currently encumbered with a
$398,000 mortgage. According to appellees, the income generated by the trust is
insufficient to make the payments on the mortgage. As such, Margaret and David wish to
sell the Chatham property in an effort to prevent its foreclosure.


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of the one-year term. The tenant currently remains in the River Bend property on the

automatically renewing month-to-month lease.

       {¶ 4} Upon Skutch’s request for its assistance regarding the disposition of the

properties, the court directed the parties to brief the matter. On May 29, 2018, Margaret

and David filed their brief, in which they asserted that the trust agreement did not support

appellant’s continued residence at the Chatham property. In support of their argument,

Margaret and David cited paragraph 3.04 of the trust agreement, which provides:

              3.04 After the death of the Settlor and payment of the expenses of

       his last illness and funeral, the Trustee shall pay to or apply for the benefit

       of the Settlor’s companion, Nadine DuFour, if she is living at his death,

       herein called “Income Beneficiary”, all of the net income of the Trust

       Estate in monthly or other convenient installments, except for two-thirds

       (2/3rds) of the income I am entitled to receive from SW Storage and

       Transport Services, LLC including but not limited to exclusive occupancy

       of my residence commonly known as 11149 River Bend Court West,

       Perrysburg, Ohio 43551. Provided, however, that in the event that Nadine

       DuFour remarries or cohabitates with a non-relative male, then her right to

       exclusive occupancy of my residence commonly known as 11149 River

       Bend Court West, Perrysburg, Ohio 43551, shall lapse and the aforesaid

       property shall be distributed pursuant to paragraph 3.07. The remaining

       two-thirds (2/3rds) of the income I am entitled to receive from SW Storage




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         and Transport Services, LLC, I give equally to my children, David Gregory

         Wyper and Margaret Elizabeth Wyper, and shall be distributed pursuant to

         paragraphs 3.07 and 3.04.

         {¶ 5} Because the foregoing provision referred specifically to the River Bend

property, and made no mention of the Chatham property, Margaret and David argued that

appellant was not entitled to continued possession of the Chatham property. Pursuant to

the express language of paragraph 3.04, Margaret and David acknowledged that appellant

was entitled to take possession of the River Bend property upon the eviction of the

tenants that were currently residing therein.

         {¶ 6} On May 29, 2018, appellant filed her brief in support of her continued

residence at the Chatham property. According to appellant, the language “exclusive

occupancy of my residence commonly known as 11149 River Bend Court West,

Perrysburg, Ohio 43551” from paragraph 3.04 of the trust agreement provided her with

exclusive occupancy of Dan’s residence at the time of his death, which the parties agreed

was the Chatham property. Appellant asserted that she was entitled to occupy the

Chatham property. Appellant argued that Dan’s intent to provide her with occupancy of

the Chatham property at the time of his death, rather than the River Bend property, was

demonstrated by the fact that Dan leased out the River Bend property prior to his death,

rendering it impossible for her to occupy the River Bend property. Moreover, appellant

noted the fact that Dan had transferred the Chatham property into the trust prior to his

death.




4.
       {¶ 7} On May 30, 2018, Skutch submitted his brief on the issue, arguing that the

terms of the trust agreement are clear and thus the interpretation of those terms requires

no reference to extrinsic evidence. In his brief before the trial court, Skutch argued that

the express language of paragraph 3.04 provided appellant with the right to occupy the

specific property named therein (i.e. the River Bend property). Skutch noted that Dan

acquired the Chatham property and transferred it into the trust 14 months before his

death, but he never amended the provisions of paragraph 3.04 to specify that appellant

was to occupy the Chatham property instead of the River Bend property upon his death.

       {¶ 8} Upon consideration of the parties’ respective positions regarding the

treatment of the Chatham property and River Bend property under paragraph 3.04 of the

trust agreement, the trial court issued its decision on June 19, 2018.

       {¶ 9} In its decision, the trial court found that the language “exclusive occupancy

of my residence commonly known as 11149 River Bend Court West, Perrysburg, Ohio

43551” clearly conveyed a right to exclusive occupancy of the River Bend property to

appellant. Due to the specific reference to the River Bend property found in paragraph

3.04, the court rejected appellant’s argument that she was entitled to occupancy of the

Chatham property. The court went on to find that Dan had “ample opportunity to amend

the Trust to reflect his wish that DuFour occupy Chatham Way upon his death, if he had

chosen to do so.” The court also rejected appellant’s argument that Dan’s leasing of the

River Bend property demonstrated his intent to provide her with occupancy of the

Chatham property, finding that the lease of the River Bend property was not related to the




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issue of whether she was entitled to exclusive occupancy of the Chatham property under

the terms of the trust agreement.

                                   B. Assignments of Error

       {¶ 10} Following the trial court’s order rejecting appellant’s claim to exclusive

occupancy of the Chatham property, appellant filed a timely notice of appeal, and now

assigns the following errors for our review:

                1. The Trial Court erred in finding that Appellant Nadine DuFour

       has “no claim to Chatham Way” when the Chatham Way property is an

       asset of the Trust, and Appellant DuFour is the present and primary

       beneficiary of the Trust.

                2. The Trial Court committed reversible error by ordering

       Defendant/Appellant Nadine DuFour to terminate her possession and

       vacate the premises known as 29666 Chatham Way, Perrysburg, Ohio

       43551.

       {¶ 11} Because appellant’s assignments of error are interrelated, we will address

them simultaneously.

                                        II. Analysis

       {¶ 12} In appellant’s assignments of error, she argues that the trial court erred in

finding that she is not entitled to exclusive occupancy of the Chatham property based

upon its reading of paragraph 3.04 of the trust agreement.




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       {¶ 13} We apply a de novo standard of review to the trial court’s interpretation of

the trust agreement, which is a matter of law. Arnott v. Arnott, 132 Ohio St.3d 401,

2012-Ohio-3208, 972 N.E.2d 586, ¶ 14.

       {¶ 14} “A court’s purpose in interpreting a trust is to effectuate, within the legal

parameters established by a court or by statute, the settlor’s intent.” Domo v. McCarthy,

66 Ohio St.3d 312, 612 N.E.2d 706 (1993), paragraph one of the syllabus. “Interpreting a

trust is akin to interpreting a contract; as with trusts, the role of courts in interpreting

contracts is ‘to ascertain and give effect to the intent of the parties.’” Arnott at ¶ 14,

quoting Saunders v. Mortensen, 101 Ohio St.3d 86, 2004-Ohio-24, 801 N.E.2d 452, ¶ 9.

       {¶ 15} “Generally, when the language of the instrument is not ambiguous, a court

may ascertain the settlor’s intent from the express terms of the trust itself. A court

presumes that the settlor used the words in the trust according to their common, ordinary

meaning.” Poston v. Schuster, 6th Dist. Huron No. H-07-037, 2008-Ohio-2085, ¶ 8,

citing Zahn v. Nelson, 170 Ohio App.3d 111, 2007-Ohio-667, 866 N.E.2d 58, ¶ 26 (4th

Dist.). Thus, there is no need to resort to principles of interpretation when the express

terms of the trust agreement are clear and unambiguous. Id. at ¶ 10. Absent a finding of

ambiguity, “we must give effect to the settlor’s clear intent as it is stated.” Id. at ¶ 12,

citing Domo v. McCarthy, 66 Ohio St.3d 312, 314, 612 N.E.2d 706 (1993).

       {¶ 16} In the present case, the issue is whether appellant is entitled to exclusive

occupancy of the Chatham property pursuant to the trust agreement. Appellant attempts

to conflate this issue by raising arguments pertaining to trust agreement provisions not




7.
cited by the parties before the trial court. Specifically, appellant urges, for the first time,

that her election to reside at the Chatham property is “conclusive and binding” on the

trust and its beneficiaries.

       {¶ 17} In support of her argument, appellant cites paragraph 3.05, a provision that

permits the trustee to invade the principal of the trust to provide for the care, support, and

maintenance of the income beneficiary, to establish that Dan’s intent was to provide all of

the trust income to her, excluding two-thirds of the income of SW Storage and Transport

Services, LLC. Further, appellant cites three provisions (paragraphs 4.01, 4.02, and 4.07)

relating to the powers of the trustee to retain investments, manage trust property, and

determine principal and income, to support her contention that she had the authority to

“use, operate, and control” the Chatham property and, therefore, the right occupy the

Chatham property.

       {¶ 18} As an initial matter, we find that these additional provisions are irrelevant

to the issue before us, because the language found in paragraph 3.04 is dispositive in this

case. Further, we note that the parties’ arguments below, relative to the issue of whether

appellant is entitled to occupancy of the Chatham property, were limited to the

interpretation of paragraph 3.04 of the trust agreement and the language contained

therein. Appellant did not claim to have the right to elect which residence she would like

to occupy before the trial court below. Having failed to raise this argument or address the

other provisions she now cites before the trial court, the argument is waived on appeal.

See Perk v. Tomorrows Home Solutions, 8th Dist. Cuyahoga No. 107012, 2019-Ohio-




8.
103, ¶ 21, citing Foster v. Wells Fargo Fin. Ohio, Inc., 195 Ohio App.3d 497, 2011-

Ohio-4632, 960 N.E.2d 1022, ¶ 24 (8th Dist.) (“It is well established that a litigant’s

failure to raise an argument in the trial court waives the litigant’s right to raise the issue

on appeal.”).

       {¶ 19} As set forth above, paragraph 3.04 entitles appellant, subject to certain

conditions not at issue here, to “exclusive occupancy of my residence commonly known

as 11149 River Bend Court West, Perrysburg, Ohio 43551.” Under this clear and

unambiguous language, appellant is entitled to exclusive occupancy of the River Bend

property. No mention is made of appellant’s right to occupancy of the Chatham property.

As noted by the trial court, Dan had over one year to amend the terms of the trust

agreement to reflect his desire to provide appellant with occupancy of the Chatham

property, but failed to do so. Appellant’s argument is tantamount to suggesting that Dan

meant to add the Chatham property to paragraph 3.04. Even if this premise were true, it

would not change the outcome of this case. The theory that the settlor would have

drafted his trust differently had he foreseen circumstances as they existed at his death

“does not justify altering the manifest meaning of the [trust].” Evans v. Evans, 2014-

Ohio-4450, 20 N.E.3d 1139, ¶ 94 (4th Dist.), citing Summers v. Summers, 121 Ohio

App.3d 263, 699 N.E.2d 958 (4th Dist.1996).

       {¶ 20} Given our conclusion that the language employed in paragraph 3.04 is not

ambiguous, we need not employ principles of interpretation in order to give effect to

Dan’s intent. The language of paragraph 3.04 clearly and unambiguously resolves the




9.
issue before us, and establishes that appellant is entitled to exclusive occupancy of the

separately identified River Bend property. Therefore, the trial court did not err when it

ordered appellant to vacate the Chatham property.

       {¶ 21} Accordingly, appellant’s assignments of error are not well-taken.

                                     III. Conclusion

       {¶ 22} Having found appellant’s assignments of error not well-taken, the judgment

of the Wood County Court of Common Pleas is hereby affirmed. Appellant is ordered to

pay the costs of this appeal pursuant to App.R. 24.


                                                                        Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Thomas J. Osowik, J.                            _______________________________
                                                            JUDGE
Christine E. Mayle, P.J.
                                                _______________________________
Gene A. Zmuda, J.                                           JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.



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