*1 OF THE ESTATES IN RE ESTERBROOK, ANN SAMANTHA D. SIMMONS ROXANNE SIMMONS, JR., W. RUSSELL Minor Children. 03-068. No. 19, 2003. on Briefs June

Submitted 24, 2003. Decided November 2003 MT 317.

318 Mont. 275.

80 P.3d 419. *2 For Appellant: Terrazas, Robert Offices, Terrazas Law Missoula (for Rocky King). Respondents:

For Paulette Ferguson, Attorney Law, C. at (for Simmons). Missoula Russell E. Simmons and Sandra L. JUSTICE REGNIER delivered Opinion of the Court. Rocky King appeals from an order of the Fourth Judicial District (1) Court, County, Missoula including the grandparents (2) future matters children; of requiring grandparental consent to for disbursement of Link, monies her children received Montana Rail Inc. (Rail Link) Burlington Railway and the Northern Santa Fe Company (3) (BNSF); failing and to direct the conservator to establish part, part, needs trusts. We affirm in and remand. AND PROCEDURAL BACKGROUND FACTUAL brought this action and Sandra L. Simmons Russell E. they had seeking settlements approval September injuries Rail Link and BNSF for negotiated with (Roxanne) and damages to Roxanne D. Simmons grandchildren, Simmons, (Russell), grandchildren’s half- W. Jr. and their Russell (Samantha), April as a result an sister, Samantha Ann Esterbrook Alberton, The 11,1996, spill in Montana. train derailment and chlorine petitions for of the settlements stated approval Simmonses’ guardians of the court-appointed were the three Simmonses sought appointment guardian of a ad litem The Simmonses also manage protect the settlements. Simmonses’ son-Roxanne’s petition and proposed and Russell’s father-consented to the children, did not King, oppose the mother of all three settlements. administering opposed proposed plan but settlement amounts the trusts and to be for the Simmonses as asked substituted petitioner. hearings held matter. The District Court five in this Before hearing, guardianships

fifth the Simmonses’ children were proceeding case, in a in this separate dissolved record began residing time, King. After that the District Court *3 hearing matter, final it approved held its this in which the attorney Link The appointed settlements with Rail and BNSF. gave Schulte conservator the Schulte John as children’s monies authority to the firms those choose investment to hold monies. money only from the settlement provided that be removed by King appeals. accounts court order.

STANDARD OF REVIEW they findings of fact to ascertain We review whether ¶4 they are erroneous and conclusions of law to determine whether McDermott, correct. In re Estate 2002 22.

DISCUSSION ONE ISSUE including by parties Did the Court the Simmonses as District err ¶5 King’s children? future the to matters including the King contends the District erred ¶6 matters. claims their interest parties future She Simmonses guardianships court-appointed oftheir terminated with the dissolution disagree. of the We person” MCA, broadly 72-1-103(25), “Interested is defined at § devisee, heir, child, creditor,

as an spouse, beneficiary, any or other person a having property right or A against claim trust estate. person furnishing supplying money support who is or or care person of a whom a conservator has appointed person been is 72-5-413(4), interested in the welfare of the protected person. Section MCA. case, In this it is that undisputed the Simmonses were the guardians years

children’s and caregivers immediately for several preceding conservatorship, significant support without financial from King or the children’s fathers. Counsel indicated at the fifth hearing that the children stay continued to Simmonses they weekends King. after went to live with It was the Simmonses who negotiated-and petitioned District approval Court for of-the Rail settlements with Link and BNSF for the children. The Simmonses have arguably against claims the trust estates addition,

for their they care of children. In contributed monies they were entitled from Rail Link and BNSF for their own injuries damages from the spill train derailment and chlorine children’s settlements. We hold District Court did not err including the Simmonses as to future regarding matters conservatorship.

ISSUE TWO Did the Simmonses’ requiring District err in consent for Roxanne, for disbursement of settlement monies Russell and Samantha received from Rail Link and BNSF? King says the District Court erred in requiring Simmonses’ Roxanne,

consent for disbursement of settlement monies Russell and Samantha received from Rail Link and She BNSF. claims the Simmonses’ ended interest dissolution their court- appointed guardianship simply children. This issue is One, phrased differently. restatement of Issue proper ¶12 We held above the Simmonses are to future conservatorship proceedings. Having so, done hold the we also *4 including Simmonses, Court did not in along err with their son and King, any stipulations for settlement disbursal of monies. THREE

ISSUE failing Did the District err in to direct Schulte to establish ¶13 special needs trusts? ordering deposit erred in Schulte King claims the District Court interest-bearing accounts without in proceeds settlement terms that the District special appears needs trusts. It

specifying provided since were to the children Court concluded that monies such personal injuries, in of their Rail Link and BNSF any necessary medical payment funds should be used for the expenses part rather allow to have at least of their than through eligibility met their for Medicaid. needs any hearings at King present failed to evidence in the proposed settlements, or more concerning approval of the argument specifically supporting evidence or defined Normally, we special for needs trusts. need or basis a error for proceeding will not hold district a 23, 288, LaDue, 47, v. acquiesced. State 304 Mont. 775, 20 P.3d 23. King provide appeal. much Correspondingly, does not us more on definitional opening appeal, King sets brief forth several is, regarding including special authorities what a needs trust certain circumstances, trust “[u]nder statement needs added). may particular purposes. (Emphasis for She be established” not, however, any authority be does advance under which it would present error not to establish such trusts in the case. While she does reply brief, cite case is do not to one in her it well-established that we reply raised first See Rule consider new matter for the time in a brief. 23(c), Sattler, 57, 47, M.RApp.P.; State v. 288 Mont. (1997), 47; Group Blythe v. Orion EBI/ 931 P.2d 42. relief to presented, normally grant the record we would With arguments sufficiently in the who fails to document its litigant Consequently, court and this Court. understand the District district we However, about the position Court’s in this matter. we are concerned being protection proceeding. of minors in this well involved designed certain appropriately trusts Special needs beneficiary’s support and future situations so as to ensure the When eligibility governmental benefits. Medicaid other used, with the prepared approved these trusts are properly governmental charged of the entities consent various catastrophic in certain responsibility programs. Specifically, claims injury cases, compromise have to victims liability Although such facing questionable of the defendant. when *5 280 are

compromise victims, settlements in the best interests of the the result is that only compensated partially the victims are and minimally compared sometimes to actual damages the suffered. In situations, such entirely proper recognize it is to in the settlement damages that documents the victims’ actual far the exceed amount of proceeds represent compensation settlement received and the received for In damages. cases, special may nonmedical these trust needs be properly preserve used to the eligibility victims’ for Medicaid and other governmental programs. injury These plaintiffs are not dipping,” “double all simply recognize but involved that the compensation paid fully does not compensate injured and thus preserved Medicaid can be to meet future medical needs. Although the sufficiently developed record was not on all of matters, these we are concerned that under circumstances these properly not protected by have been the District Court’s rejection special Therefore, proper needs trust. we think the course is to and this remand matter the District for Court further consideration. part, Affirmed in part, reversed in and remanded further

proceedings Opinion. consistent this with NELSON,

JUSTICES COTTER RICE concur. GRAY, concurring part CHIEF JUSTICE in dissenting in part. join affirming I the Court’s on opinion District Court Issues King clearly

One and Two. failed to establish error the District regard being Court with to the Simmonses to future matters King’s regard children and with requiring their consent for for disbursement monies to the children. Three, I respectfully opinion dissent the Court’s on Issue

relating so needs trusts. I do for the same reasons as I join opinion King Court’s earlier issues: has not established words, candidly by error. In other I dissent for the reasons stated so I the Court. would affirm the District on this as well. issue I, too, am being protection concerned about the well of these However, notes, properly Kang present as the Court did not argument supporting trial evidence or defined in the establishing special agree need or needs trusts. I basis also and, indeed, appeal Court that she does not do so on not advance does single authority in her opening brief under present I disagree erred in not trusts in case.

281 an grant relief to only “normally” would we the Court that trial argument or his either the support who fails to appellant legion we not even Our do or at this Court. cases authority required by Rule arguments supported by consider See, Liberty Corp., Ins. 23(a)(4), e.g., v. Northwest M.R.App.P. Wiard 30, 281, 30; re 295, 132, P.3d 30, MT 79 ¶ ¶ 2003 ¶ 24, 94, 24, Gerhart, 292, Mont. 78 Marriage 2003 MT 318 ¶ ¶ Clark, Mont. 1219, 24; Marriage In re ¶ 58, 34, 1228, 25; Harney, v. 71 P.3d Hawkins on a 34. To reverse a District Court 66 P.3d Mont. is, view, my briefing-such as that before us here record-and insupportable. *6 See, e.g., appellant error. bears burden ¶ 35; McMahon,

Hawkins, re Marriage 175, 7, 53 1266, 7; of M.J.W., Matter Mont. P3d Kong 18. The Court admits that here. Our for the children has not satisfied burden concern law, duty apply simply-and it is our notwithstanding, under justification-reverse a district legal without these. circumstances such as precedent here. It dangerous The Court sets an unwise and courts, any legal it basis

signals will trial without whatsoever, it has it will decide when when “concerns.” How extraordinary cases to be discretion future remains exercise legal system on its head agree turning seen. I cannot Montana’s in such a fashion. I I on all three issues. dissent would affirm the District Court to do so.

the Court’s refusal joins concurring foregoing JUSTICE WARNER dissenting opinion of CHIEF JUSTICE GRAY.