*1 Moreover, to the extent that Wilson re State,
lies on Dumes and Jones v.
N.E.2d 37 (Ind.Ct.App.1999), trans. de
nied, in support of his claim that the ad
mission of his complete BMV record con error,
stituted fundamental we conclude
that both Dumes and Jones unpersua are
sive because in Jones, both Dues
this court concluded that the admission of
the defendants' unredacted driving records error,
constituted reversible funda
mental error. Again, a finding of funda
mental error "requires a defendant greater
show prejudice than ordinary re
versible error." Purifoy, 821 N.E.2d at
412. Although we believe that the trial
court erred in admitting Wilson's unre- record,
dacted BMV we conclude that Wil
son has prove failed to that its admission
subjected him to any greater prejudice
than ordinary reversible error. Wil
sоn has prove failed to that the admission complete his BMV record constituted
fundamental error.
The judgment of the trial court is af-
firmed.
DARDEN, J., BROWN, J., concur.
Bonnie E. PALOUTZIAN and
Linda Taggart, M. Appellants-
Respondents,
Gregory A. TAGGART and Belle
Delint-Eaglesfield, Appellees-
Petitioners.
No. 49A02-0908-CV-817.
Court of Appeals of Indiana.
Aug. *2 Cremer, Cremer, & A. Cremer
John IN, Attorney Appellants. for Indianapolis, Adams, Jeffrey A. Bishop, P. Michael Glazier, P.C., F. John Garelick & Cohen Ittenbach, Trettin & Johnson Ittenbach IN, Attorneys Koeller, Indianapolis, Appellees.
OPINION VAIDIK, Judge. Summary
Case and Lin- Paloutzian (Taggart) E. Bonnie Henry natural children Taggart, da M. order trial court's appeal the Taggart, G. Delint- and Belle Taggart A. Gregory Henry G. children of Eaglesfield, are beneficiaries Taggart, Jr's 1953 Taggart L. Alex grandfather the death of the said G. Upon his trust Taggart executed Alex trust. rule was undistrib- principal to the in effect. shall be income of the Trust Estate uted provi- one makes that whеn provides follows: distributed as *3 children of for a child or in his will sion Henry G. In the event the said a. himself, he will be other than some surviving shall leave a widow Taggart included an not to have surviving, one- any him and person, such other or children of child (1/3) thereof shall be distributed third in the will or something unless there is widow and the remainder to said to rebut cireumstances extraneous divided the Trust Estate shall be impres- of first In this issue presumption. surviving children equally among the sion, that a 2003 amendment we hold Taggart. Henry of the said G. Code, section 30- Indiana Code the Trust Hence, according to this section Id. at 14. 4-2.1-2, abrogated which others, per was to be and the distribution chil- placed adopted rule and meaning that capita per stirpes, natural chil- and not equal footing with dren on dren, retroactively to the trust have survived him applies Henry's children must section to Indiana Code pursuant this case from the Trust. See id. at in order to take retroactively This is because to 30-4-1-4. (a)-(d)). (subsections The Trust 14-16 adversely neither the amendment Taggart "expressly sur- provided also beneficiary nor right given affects a right any change all to make renders he any beneficiary which gives beneficiary respect of the trust with have when the intended to or she was not at 13. principal." income or Id. either affirm therefore trust was created. We 1, 1954, а little January which was On the trial court. Taggart month after exe- more than one History1 Facts and Procedural Trust, abrogating a statute cuted the ("Taggart") execut Taggart Alex L. Jr. applies rule as it stranger to Agree Trust inter vivos ed an irrevocable trusts) (but vivos went wills inter 27, ("'Trust") 1953. on November ment into effect. Bank, N.A.,2is the trus JPMorgan Chase executed, Hen after the Trust was Also the Trust in Taggart executed tee. When 31, 1959, Henry March ry married. On son, ("Henry"), Henry Taggart G. his Maria Taggart A. adopted Gregory not have not married and did Belle Delint-Eia- now known as Taggart, Trust, terms of the children. Under chil (collectively "the glesfield from the Trust Es entire income "[Tlhe dren"), Henry they were minors. while benеfit of be for the use and tate shall three natural chil then and had divorced during ... for and his Henry G. dren, (Tag- E. Taggart, Linda M. Bonnie p. 18. But Appellants' App. lifetime...." Paloutzian, Taggart, Brenda L. gart) death, Henry's the Trust upon marriage.3 Taggart died by another following for the distribution: JPMorgan the successor Chase Bank is argument in this case on 2. We heard oral 1. Indianapolis, The Indiana National Bank Appeals court- in the Court of June original trustee. attorneys for their excel- We thank the room. greatly aided presentations, which have lent attorney stated at The natural children's 3. challenging issue in the resolution of this us argument the three natural children oral impression. of first years 1959-1972. were born between Henry 1972. December later died on cluded in the class of surviving 'the chil- Henry was survived Henry dren of the said Taggart' G. widow, children, his two the terms of the Trust." Appellants' App. three natural children. p. 10. JPMorgan December 2008 Chase The trial court hearing held a on the ("Trustee") Bank petition filed a in Marion matter. At the hearing, counsel Court, Division, Superior Probate request adopted child Belle attempted to introduce ing interpret instructions on how to into evidence an affidavit from Trust. The Trustee filed the petition pur which he discussed Taggart's his father 30-4-3-18(a) suant to Indiana Code section *4 p. intent. Tr. 85-38. The court took the ("If thеre is reasonable respect doubt with matter under advisement but later ruled any relating matter to the administra that the affidavit was Ap inadmissible.4 trust, tion of the the trustee is entitled to pellants' 15). App. p. 7 (paragraph Fol court."). be instructed Specifically, lowing the hearing, the trial court entered the Trustee cited the stranger to the adop concluding order that the Trust includ " rule, tion provides which 'when one ed the children. The pro order makes in his will for a child or vides, in pertinent part: children of some other than him 29-1-6-1(d) 10. ILC. applies [which self, he will be not to in have 1, took effect January 1954, wills] cluded an adopted child or children of such shortly аfter this trust was executed and person, other unless there is something basically reversed the "Stranger the will or in the extraneous cireumstances Adoption" rule for children adopted to rebut presumption.'" Lutz v. For while minors. tune, 77, 758 N.E.2d 81 (Ind.Ct.App.2001) 11. Rules of construction for interpret- (quoting Peirce v. Farmers State Bank of ing may wills be used to aid the inter- Valparaiso, 222 Ind. 51 N.E.2d pretation of inter vivos provisions trust (1943)), trans. dismissed. The Trus but do not control. tee noted that although this rule was in 12. Public policy will not allow this
existence Taggart executed the presume Court to the settlor used the Trust the Trust Code was amend language of this trust to intentionally ed in 2003 place adopted сhildren on exclude children. equal footing with natural children when construing a long trust as as the children 13. There is nothing the trust docu- were age before the of twenty-one ment itself that shows the settlor intend- and the addition, settlor's death. ed to exclude adopted children. Trustee noted there is a retroactivity pro 14. Alex Taggart G. did not intend to vision in the Trust providing Code exclude adopted children when he exe- 2003 amendment shall to trusts exe cuted this trust. 2, 1971, cuted before unless an * x * * * *# exception is met. Noting that Indiana's 16. IC. 30-4-2.1-2 and 1.C. 80-4-1-4 appellate yet courts have to address the apply to this trust. retroactivity of the 2003 amendment trusts, the Trustee sought "the Court's I.C. 30-4-2.1-2 can bе applied ret- instruction concerning whether Henry's roactively because it does not adversely adopted son daughter should in- affect the rights of a vested beneficiary Appellees 4. The do not raise the exclusion of this affidavit appeal. as an issue on or give beneficiary which of law or against public policy. 532; Id. at he or she intended to have when One, Malachowski v. Bank Indianapolis, the Trust was created. (Ind.1992); N.E.2d Matter of Walz, 18. Belle Delint-Eaglesfield Greg- 733 (Ind.Ct.App. ory A. Taggart are "surviving 1981); Zitter, 2(a) ("[In 37 A.L.R.5th at G. Taggart" along with law of Bonnie trusts it is the intent of the Paloutzian, Brenda L. Taggart, individual settlor that govern, must not the and Linda M. Taggart. general attitudes of society, and thus if a settlor would specifically provide for an ("the Id. at 7. Bonnie and Linda adopted child or descendant to take children"), Brenda, but not sister instrument, a trust the child should be appeal now the trial court's order. share, entitled to receive said but the con Discussion and Decision verse is also true and thus a specific exclu The natural children contend that sion should bar the adopted child from trial court erred in interpreting the Trust portion estate."). This Court is not *5 as including the adopted children. Specifi- "at liberty to rewrite the agreement trust cally, they argue that the 2003 amendment any more than it liberty is at to rеwrite does not retroactively. In making Malachowski, contracts." 590 N.E.2d at argument, this the natural children do not omitted). (quotation 565-66 When a trust assert that the application retroactive vio- instrument must be court, construed a lates their rights. constitutional Ap- we attempt to discern the settlor's intent pellants' p.Br. in light of the facts and cireumstances existing at the time the instrument
One of the cardinal principles of trusts executed. Id. at 566. and estates is that the testator or law settlor has the arrange for the When Taggart executed the Trust in distribution of his estate as he sees fit. late November Henry was unmar Jay Zitter, Annotation, M. Adopted Child ried and addition, hаd no children. the as Within Class Named Deed or Inter stranger to the adoption rule was in effect Instrument, Vivos 2(a) 37 A. L.R.5th provided that when one provi makes (1996). Thus, rule, a general as person a sion in his will for a child or children of may give a larger percentage to one bene person some himself, other than he will be ficiary another, than completely ignore a presumed not to have included an adopted society who claims is the usual and child or children of such other person, subject of the person's bounty and unless there anis indication the will or should all "rights" receive a portion of extraneous cireumstances to rebut estate, the or even give the entire estate to presumption. Lutz, 81; 758 N.E.2d at charity and ignore all family members en Peirce, 482; N.E.2d at see also 90 tirely. Id. (2002) ("When C.J.S. Trusts the in The interpretation of a trust is a strument is made by one other than the question of law for the court. Univ. S. adoptive parent, there is a presumption Baker, Ind. Found. v. against adopted the 843 N.E.2d child being entitled to (Ind.2006). The primary purpose of take."). corollary The to that rule was court in construing a trust instrument is to that when one makes for his own ascertain give effect to the settlor's will, child or children in his he will be intention carry out this intention un deemed to have included an adopted child less it inis violаtion of some positive children, rule or unless there is something in rule, stranger-to-the-adoption cireumstances extraneous will or her inherit from child could Lutz, 758 N.E.2d presumption.
rebut that
from their rel
but not
parents,
adoptive
adoption
to the
at 81.
"strangers"
they were
Because
atives.
presumption
a rebuttable
created
these relatives
adoption process,
intend
did not
adoption
stranger to
a
to have intended
not
were
desig-
a
within
include
outside of
to be inherited
property
§ 244
2d Trusts
Am. Jur.
class. 76
nated
treatises and
early
The
bloodline.
(2005).
question
not
adoption
do
articles
to the
background
As
a well-estab
treated as
It is
precept.
rule,
en
Massachusetts
adoption
rule that
general
exception
lished
generally described
acted what is
family rela
creates a substitute
Naomi
statute.
first modern
[Keegan v. Ger
one court
tionship. As
Cahn,
the Real
or
Substitutes
asked
]
in all
(West 1999) ("For
purposes
1-2-8
all
only abrogated
strang
have not
states
sucсession, including
intestate
succession
adoption
er to the
rule but have ereated
by, through, or from a person, both lineal
opposite presumption
collateral, an adopted
child shall be
included,
children are to be
which can be
treated as a natural child of the child's
only by in
express contrary
rebutted
adopting parents, and the child shall cease
in the instrument or an intent clearly
tent
to be treated as a child of the natural
implied by
surrounding facts and cir
parents
and of
previous adopting par-
Bogert, supra,
cumstances.
at
ents.").
Assembly abrogated
Our General
Lutz,
this Court held that
these 1953
applied
rule аs it
amendments
Probate Code
the Probate
in 1958. Section
Code
6-601
"changed" the
provide
the following
was added
rule for
it applies
to wills. 758 N.E.2d at
interpreting a will:
82;
Bank,
see also Retseck v. Fowler State
contrary
ap-
In the absence of a
intent
(Ind.Ct.App.2003)
therein,
pearing
wills shall be construed
("[The
Assembly
General
has amended
personal
as to real and
estate in accor-
'stranger-to-the-adoption'
rule by en
following
dance with the
rules:
Code.");
actment of the
1953 Probate
14 J.
x
#
x
x
x
x
al.,
Eric Smithburn et
Indiana
Practice:
(d) In construing
making
a will
a de-
(Bnd
2009) ("[The
Family Law
5:1
ed.
to a
persons
vise
described
*7
stranger
adoption
to the
changed
rule]
relationship to the testator or to anoth-
with the 1953 Probate Code. That statute
er, any person adopted during minority
provided that a
adopted during
child
his or
before the death of the testator shall be
minority
generally
her
would
be treated
adopting parent
considered of his
or
like a
purposes
natural child for
of inheri
parents and not the child of his natural
tance."). When the Probate Code was
previous adopting parents....
or
1953,
1,
in
January
amended
effective
(Burns
6-601(d)
1953).
§
Ann.
Ind.Code
1954,
abrogate
to
the stranger
adop
to the
January
Section 6-601 went into effect on
rule,
tion
there was
accompanying pro
no
1, 1954, a little mоre than one month after
making
vision
these amendments retroac
1953,
Taggart executed the Trust. Acts
appellate
tive.
our
courts have held
2502,
subsection,
p.
§
417. This
very
with
adoption
to the
rule still
changes,
minor
is now codified at Indiana
applies to wills whose testators died before
29-1-6-1(d):
section
Code
See,
Lutz,
e.g.,
in 2003. Indiana Code section acts, rights, one which "affects obligations, Law 4- was added Public which are per 30-4-2.1-2 transactions and conditions prior formed or exist July Section effective as follows: provide § statute." 73 Am. Jur. 2d Statutes (a) (b), retrospective A law affects "trans Except provided as subsection actions which occurred or which ac- rights benefi- construing naming a trust as by relationship operative ecrued before it became clary person a described another, person a which ascribеs to them not to the settlor or effects inherent adopted before: in their nature in view of the law in force at time Spe of their occurrence." Id. (21)
(1)
twenty-one
cifically, the Trust
at Section 30-4-1-
Code
years
age;
provides
retroactivity
as follows:
(2)
settlor;
the death of the
the child of the
Except
shall be considered
elsewhere
not
adopting parent
parents
or
article,
the rules of law contained in this
previous adopting
child of the natural or
article
to all
shall
trusts created
prior
parents.
1971 unless to do
so would:
30-4-2.1-2(a)
(West
Ann.
Ind.Code
2009).5 As with the 1953 amendments to
(1) adversely
right given
affect a
Code,
the Probate
this 2003 amendment
any beneficiary;
the Trust
in effect abrogated
Code
(2) give
any beneficiary
a
it applies
which he was not
intended to have
placed adopted
to trusts and
children on
ereated;
when the trust was
equal footing
with
(3)
duty
a
impose
liability
or
construing a
trust.
amendment shift
person which
intended to be
presumption
from one favoring
ed
created;
imposed when the trust was
exclusion of
children described
or
relationship
another to a presumption
any person
relieve
from
duty
favoring
inclusion of such
chil
liability imposed
by the terms of
dren.
prior
the trust or under
law.
But,
Code,
unlike the Probate
the Trust
retroactivity
provision.6
Code contains
(West 2009)
Ann.
30-4-1-4
Ind.Code
added).7
A
retroactive
has been
(emphases
defined as
The Trust Code
*8
2,
significance
5. The
children cite a
"September
section from 7. The
of
1971"
Henry's
promulgation
Indiana Probate Law and Practice
that it is the date of
of the 1971
they argue supports
position
XXX;
which
that
Acts.
Ind.
2005
Acts.
see also id. at
they are indeed beneficiaries under the Trust.
("Until 1979,
containing
XXVI
acts not
an
However,
Appellees'
p.
See
Br.
5-6.
emergency
specific
this sec-
clause or a
effective date
Henry's merely
tion of
summarizes the 2003
upon promul-
became effective
amendment and does not consider the effect
le.,
gatiоn,
completion of official distribution
stranger
rule on it. See
of session
laws to
clerks of all circuit
al., Henry's
courts.").
7 Daniel R.
et
Gordon
Ind. Pro-
Section 30-4-1-4 was first enacted
§
bate Law
& Practice
39.42 at 39-219-39-
1971,
1971,
416,
2,
see Acts
P.L.
almost
(Matthew
2009).
thirty-two years
Bender
the 2003 amendment
before
abrogating
to the Trust Code
reason,
amended,
6.
For this
repro-
cases
rule.
It was
cite,
Lutz,
above,
1982,
171,
Peirce and
which construe
duced
Acts
Public Law
Code,
testamentary
emergency
trusts under the Probate
117 with
Section
effective date
dispositive
presented
are not
24,
of
issue
here.
February
1982.
Study Commission Comments to Section
Neither party argues on appeаl
30-4-1-4 recognize that statutes created
that the retroactivity statute does not ap
after the creation of a
ply
trust will be
applied
the 2003 amendment abrogating the
retroactively to that trust
but caution that
to the adoption rule. And in
may
statutes
not be
applied retroactively if
deed,
we
determine that it does. We do so
rights
vested
are
because
presume
we
affected:
that when the legisla
ture amended the Trust Code in 2003 to
This article will affect the remedies of
abrogate the stranger to
adoption rule,
the parties and the procedure
only
it was aware that
the retroactivity
clause
for implementing the remedies but for
applied to all trusts created before Sep
administering the trust in general as to
2,
tember
1971.8 Accordingly,the 2003
trusts
prior
created
to the effective date
amendment applies to this Trust. A re-
of this code. Under
present law,
buttable presumption exists that Taggart
statute will not be applied retrospective
intended to include the adopted children of
ly unless the plain language of the stat
Henry unless the natural children are able
ute indicates that it was intended to be.
to prove that one of
exceptions
delin
Chadwick v. City Crawfordsville, 216
eated in the retroactivity statute applies.
399,
Ind.
937,
N.E.2d
930 the the abrogating excep- first the As for $ 30-4-1-4. I.C. in- pre-1947 retroactive made rule was that assert children tion, natural the "vested interest the and that struments the clear that more be could "Inlothing estate the life when absolutely" in 1972 im- adversely been have children natural died). father, holder, child's adopted trust the of a diminution than pacted 2. That p.Br. Reply Appellants' interest." an had natural children the Although (5) by five estate undistrib trust is, of the principal in the interest "division (8) adversely impact the the time would Trust at three of the of uted income instead The Id. at children." effective, the interest [natural] became amendment natural that the respond Henry children adopted absolutely vested because not was adversely affected more are no children who it unknown was alive. was still chil- natural the than when be Henry their inclusion of would "surviving children" the Brenda, born. was sibling, Hinds, at own N.E.2d dren's 413 his death. upon Cf. of the class because this is They posit beneficiaries that named (holding 608 n. changing until constantly a vested acquired beneficiaries trust inter vivos of an could death, or deaths births Henry's created); see trust was on date interest occur. Trusts 90 C.J.S. also a trust of ("Where, provisions the ret the determining whether either deed, postponed, class is to a gift a amend of the application roactive termi pending time or particular ato given right a adversely affects ment estate, only those preceding of a nation amendment, beneficiary, we arrival of at the in existence who are take adopted of the inclusion which favors distribution...."). There for the time the amend children, the Trust have not fore, children could the natural July 2003-and on into effect ment went the retroactive affected adversely been for The rationale other date. not some giving 2003 amendment of the application the Trust amendment applying in the interеst an adopted children is effective inter vivos trust that an 2003 is uncertain time it was at that trust because is not execution, a will which unlike upon "surviving chil be they would whether death. testator's until the effective child each the share of dren" and/or 1105, 1109 Waters, 879 N.E.2d Ickes to receive. reh'g, 886 on (Ind.Ct.App.2008), clarified nat exception, As to the second trans. de (Ind.Ct.App.2008), adopted that were argue children statutory ural a So, had example, nied. surviving chil considered children to be of the powers changed the amendment they given would be Henry, of dren manage or could how she as to Trustee to have intended they were trust, amend which said corpus invest the was created. the Trust of the when at the time effective ment would Tag- must look that we children claim the 2008 applies The same amendment. Trust was time the intent at the day gart's Consequently, amendment. However, concede parties both created. favoring inclusion amendment other evi and no Trust is silent effective, became children adopted to ascertain the record exists in in dence interest received or exclude include intent Henry's A.2d at 658 Purifoy, 371 Trust. See because precisely It is children. in the interest child's (holding way intent either no evidence there is between executed trust instruments *10 outcome. the controls presumption the that the statute in 1961 1940 "vested" 931 rule following well established basis of the argument Thus, children's natural the the settlor's intent is, trust construction: they That of to us. cireular to be seems the facts and determined from must be presumption the retroactive that concede surrounding the settlor at but cireumstances applies, adopted children include of the trust." Id. adopted of the execution the time is evidence only if there Taggart executed his irre But if evi- at 734. When be included. were to children children inter vivos Trust November adopted the vocable existed that dence adoption would be no to the rule was stranger there the to be includеd were presump- effect, that he presume the retroactive and we must reason that rule. Rocker v. familiar with tion. Cf. 364, 370, N.E. 171 Ind. Metzger, Instead, already determined we have (1908) ("We presume must that the the amendment reversed the 2003 in this case made his will with testator stranger to by the established presumption regard knowledge longstanding of [a favor presumption rule to a the of real estate where a ing disposition the children. adopted of ing the inclusion the against elects to take widow willl Therefore, have the the meaning of the words light in the of with evidence forward going burden of therein."). reiterate, To used execution the time of the showing that at one rule states that "when Trust, intended to exelude of in a for a child makes [document] they have not This adopted children. person of some other than or children done.9 himself, not to have he will failed natural children have Because the child or children of included an exceptions either of the two prove there is some person, other unless such the 2003 amend- we conclude that apply, in the extrane in the thing [document] Trust. retroactively to the applies ment that presump to rebut ous circumstances ruling that affirm the trial court's we Peirce, at Ind. tion." un- children are beneficiaries Here, pre nothing rebuts at 482. the terms of the Trust. der Taggart provided for that when sumption Affirmed. corpus of the Trust the distribution "surviving upon Henry's children" Henry's RILEY, J., concurs. death, corpus intended for the to be he CRONE, J., separate with dissents only Henry's surviving natu distributed opinion. ral children.
CRONE, Judge, dissenting. otherwise, majority concluding In disregarded ignored presumption, construing provi trust has polestar "The Trust, intent, rewritten the Taggart's of the settlor." Matter sions is the intent acknowledgement its notwithstanding Walz, at 733. The relevant 423 N.E.2d so. See Mala liberty are not at do settlor at the we that held intent "is chowski, N.E.2d at 565-66.10 Words executed. This is time the trust was view, my majority's discussion type of 10. In an instance of the illustrates Walz adop- "background" to thе presumption. tio rebut evidence needed justify apparent attempt to its tion rule is Walz, specifically were the beneficiaries grounds. public policy The ma- decision on non-named and as such the named today, neglects mention that even jority N.E.2d at 735-37. child was excluded. 423 (in- prohibit a public policy does not *11 in legal very specific used a context have a prior 1971 unless to do meaning, a court's primary task is to so would: recognize meaning. and honor that A (1) adversely affect a right given to may change court not that meaning dec any beneficiary; fact, which precisely ades after the is what (2) give a any beneficiary majority has done here. Just as the which he was not intended to have legislature may pass a law impairing created; when the trust was contracts,11 the obligationof so must the (8) impose duty a or liability judiciary refrain from frustrating the ex person which was not intended to be pectations of those who dispose of their imposed created; when the trust was trust, will, property by or deed. or It important is to note that purpose relieve person from any duty of the to the adoption rule was liability imposed by the terms of not to against adopted discriminate chil- the trust or prior law. dren, but rather to ensure that a settlor's Ind.Code 30-4-1-4. intent cоuld not be by subverted events majority states that "[a] rebuttable is, outside his or her by control-that an- presumption Taggart exists that intended person's adoption other of one or more include the children of Henry purpose for the of redistributing unless the natural children are able to the trust estate. It is also important to prove that one exceptions delineated note that we are concerned here with the in the retroactivity applies." statute Op. private distribution of a per- individual's at 929. This statement confuses the issue property sonal according to his stated in- and stands the stranger tent, not with the public distribution of it, rule on its hеad. As I see the issue is words, funds. In other it is not our task to simply whether Indiana Code Section 30- carry public out the policy of the State of 4-2.1-2(a) applies retroactively vis-u-vis Indiana, but rather carry out Taggart's pursuant Trust to Indiana Code See- intent expressed in the 1953 Trust docu- 30-4-1-4; tion the natural children bear ment. presume We must the burden of proving that one of the was aware of the implications of the exceptions Indiana Code Section 30-4- to the adoption rule when he applies. 1-4 Trust, executed the and we must ensure case, corpus applying is Indiana pursuant distributed Code See- 30-4-2.1-2(a) his stated intent. tion retroactively would ad- vеrsely affect rights given to the natu- majority, Unlike the I believe Tag- ral Trust, children under in that it gart's intent unaffected the Trust would diminish the amount of their be- Code's retroactivity provision, which quests. The majority posits that states, the natural children could not have been
Except elsewhere in this adversely affected ap- retroactive article, the rules of law contained in this plication of [Indiana Code Section 30-4- article shall apply 2.1-2(2) to all trusts created giving ] children an cluding Inp. parent, stranger) much less a Constitution, from ("No art. ex favoring law, children over post chil- facto impairing or law the obli- contracts, gation of dren in a will or trust. passed."). shall ever be *12 in interest the trust because at time [the
the Trust Code was amended in it 2003] they
was uncertain whether would be
"surviving Henry children" of and/or each
share child was to receive.
atOp. any adopted 980. The inclusion of adversely affected the
rights of the natural children from that forward;
time only the extent ad-
verse effect was uncertain until
died 2008. To read the statute other-
wise would render Indiana Code Section
30-4-1-4(1) meaningless. On this basis
alone, I would hold that Indiana Code Sec- 80-4-2.1-2(a)
tion may not be applied ret-
roactively and reverse the trial court's or- stating
der children are
beneficiaries under the Trust. respect
With to the second exception 30-4-1-4,
listed Indiana Code Section I
note that the entire class of chil-
dren, however many, exists as beneficia- only
ries as a result of the retroactive
application of Indiana Code Section 30-4-
2.1-2(a). Based on foregoing, I re-
spectfully dissent. Appellant-Plaintiff, PERRY,
Teresa
WHITLEY COUNTY 4-H CLUBS
INC., Appellee-Defendant.
No. 91A03-1002-CT-101. Appeals
Court of of Indiana.
Aug.