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In re Trust of Floyd F. Kallmer

Court of Appeals of Iowa

October 9, 2019

IN THE MATTER OF THE TRUST OF FLOYD F. KALLMER, L.K., Appellant/Cross-Appellee,
v.
JAMES KALLMER and WILLIAM KALLMER, Appellees/Cross-Appellants.

          Appeal from the Iowa District Court for Buena Vista County, David A. Lester, Judge.

         L.K. appeals the district court's refusal to appoint a co-guardian ad litem and its determination he is not a beneficiary of a trust. James and William Kallmer cross-appeal an order requiring the trust to pay L.K.'s attorney fees for this appeal.

          Katie F. Morgan (until withdrawal) and Tisha M. Halverson of Klay, Veldhuizen, Bindner, De Jong & Halverson, P.L.C., Paullina, guardians ad litem for appellant.

          Michael R. Bovee of Montgomery, Barry, Bovee, Steffen & Davis, LLP, Spencer, for appellees.

          Heard by May, P.J., Scott, S.J. [*] and Gamble, S.J. *

          MAY, PRESIDING JUDGE.

         Who are the beneficiaries of Floyd Kallmer's testamentary trust? Floyd's living sons, James and William Kallmer, claim they are the only beneficiaries. L.K. disagrees. He claims he was equitably adopted by Floyd's deceased son, Robert. Therefore, he claims, he is a third beneficiary of Floyd's trust.

         The district court agreed with James and William. The court granted summary judgment in their favor. L.K. appeals through his guardian ad litem (GAL). He contests both the summary-judgment ruling and a prior order declining to appoint a co-GAL in Thailand.

         James and William cross-appeal. They contest a post-summary-judgment ruling requiring Floyd's trust to pay the GAL's appellate attorney fees.

         We conclude (1) the district court did not abuse its discretion in refusing to appoint a co-GAL; (2) the district court was correct in granting summary judgment and declaring James and William are "the only beneficiaries" of Floyd's trust; and (3) the district court erred in assessing costs of this appeal prior to the appeal.

         I. Background Facts and Proceedings

         Floyd Kallmer is father to three sons-Robert, William, and James. In 1997, Floyd executed a will. It provided for the creation of a testamentary trust. The trust's net income would be distributed to Floyd's wife for life. Upon her death, the trust would terminate. The "property remaining" would then be "distribute[d] to [Floyd's] children, share and share alike, provided that if any of [Floyd's] children should not be living, such child's share shall go to his children, share and share alike." Floyd died in 2001.

         Robert spent his winters in Thailand. There he met a woman named Thongmaoun, also known as Fa. At the time they met, Fa was married to another man. That marriage was dissolved in February 2005.

         In October 2005, Fa gave birth to L.K. L.K.'s birth certificate and a consular report of birth abroad both list Robert as his father. Fa and Robert married in December 2006.

         Robert had doubts about whether L.K. was his biological child. Even so, Robert loved L.K. and treated him as his son.

         In 2009, Robert amended his own personal trust. The amendment named L.K. as Robert's son and a beneficiary of Robert's trust.

         Robert died in 2010. In 2012, Floyd's trustees applied for the appointment of a GAL "to represent the potential interests" of L.K., "the possible son" of Robert. The application also asked the court to "[d]irect that the Trust shall pay" the GAL's fees. The ...


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