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IN THE COURT OF APPEALS OF IOWA No. 2-087 / 11-0392 Filed June 13, 2012

JENIFER LALK, Plaintiff/Counterclaim Defendant, vs. KAREN BERNABE, Individually and KAREN BERNABE, as Executor of the Estate of Doris E. Grimm, Defendant-Counterclaimant. ------------------------------------------------KAREN BERNABE, Third-Party Plaintiff-Appellee, vs. JENNIFER LALK, Third-Party Defendant-Appellee, and GREG PORTEE, Individually and GREG PORTEE as Executor of the Estate of PATRICIA PORTEE, Third-Party Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Howard County, Richard D. Stochl, Judge.

Greg Portee appeals from the district court's declaratory judgment ruling , concluding Jennifer Lalk and Karen Bernabe were the remainderman distributees under the testamentary trust created by Wesley Haskovec. AFFIRMED.

2 Kevin E. Schoeberl of Story & Schoeberl Law Firm, Cresco, for appellant. Andrew Van Der Maaten of Anderson, Wilmarth & Van Der Maaten, Decorah, for appellee Karen Bernabe. Matthew D. Gardner, West Des Moines, for appellee Jennifer Lark.

Heard by Vaitheswaran, P.J., and Doyle and Danilson, JJ.

3 DANILSON, J. Third-party defendant, Greg Portee, appeals from the district court's ruling on a cross-petition for declaratory judgment, concluding that Jennifer Lalk and Karen Bernabe were the remainderman distributees under the testamentary trust created by Wesley Haskovec. Portee contends the district court abused its

discretion in denying his motion to continue. He also asserts the court erred in applying the provisions of the Iowa Trust Code, chapter 633A (2009). Finding no abuse of discretion or error of law, we affirm. I. Background Facts and Proceedings. A. Wesley Haskovec's will. Wesley Haskovec died testate on June 13, 1987, survived by his wife, Doris E. Grimm, and his two daughters, Patricia Portee and Karen Bernabe. At the time of his death, Haskovec owned real

estate in Howard County. Haskovec's will distributed one -half of the Howard County real estate to Grimm, his wife, at his death, and conveyed the other onehalf interest in the real estate into a trust, naming Grimm as the income beneficiary and his daughters, Patricia Portee and Karen Bernabe, as the residual beneficiaries. B. Doris Grimm's will. Doris Grimm died on December 27, 2008. Karen Bernabe and Jennifer Lalk were appointed co-executors of Grimm's estate. Lalk is Patricia Portee's daughter and Grimm's granddaughter. Under Grimm's will, distribution of her assets went in equal shares to Lalk and Bernabe. On March 3, 2010, Lalk filed a petition in equity asserting various claims against Bernabe, including that an annuity had been purchased upon the sale of "certain farmland owned by Doris E. Grimm," in which Lalk claimed an interest.

4 C. Declaratory judgment action. In a cross-petition for declaratory

judgment, Bernabe asserted that under the terms of Haskovec's will, Bernabe was entitled to the entire remainder interest of the trust assets upon Grimm's death because "Patricia Portee, did not survive the lifetime beneficiary of the trust, Doris E. Grimm, as required by Wesley T. Haskovec's Last Will and Testament." Patricia Portee had died intestate in 2003. In answer to the petition for declaratory judgment, Lalk asserted that "proper interpretation based upon Iowa law does not require the [Haskovec] Trust assets be distributed to [Bernabe]." Lalk cited Iowa Code section 633A.4701(3).1 She claimed she was the only issue of Patricia Portee and was entitled to onehalf of the remainder interest. On August 30, 2010, the district court noted Greg Portee2 had been served with the petition for declaratory judgment. The court ordered that upon completion of necessary discovery, "an interested party may request the scheduling of hearing on Third-Party Plaintiff's Petition for Declaratory Judgment." On October 18, 2010, Lalk filed a request that a hearing be scheduled. The court set the matter for hearing on November 22, 2010.

Section 633A.4701(3), on which Lalk relies, provides: If a beneficiary dies prior to becoming entitled to possession or enjoyment of the beneficiary's interest and no alternate beneficiary is named in the trust, and the beneficiary has issue who are living on the date the interest becomes possessory, the issue of the beneficiary who are living on such date shall receive the interest of the beneficiary. 2 Greg Portee was Patricia Portee's husband at the time of her death and was the administrator of her estate. He is not Lalk's biological father.

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5 On November 19, 2010, Portee filed an answer to the petition for declaratory relief. He also filed a motion to continue the November 22 hearing, asserting in part: 3. At the time that the Petition for Declaratory Relief was set for hearing, the issues to be decided by the Petition for Declaratory Relief appeared to be narrow in focus. 4. It now appears to the undersigned as attorney for the Third Party Defendants Portee that the issue(s) are more complicated, as the Petition references the proceeds from the sale of certain real estate that the Patricia Portee Estate had an interest in. Said sale was completed without any notice and or authority of Greg Portee as the Executor of the Patricia Portee Estate. 5. There may be other causes of action that the Patricia Portee Estate and Gregory Portee, as an individual may have against the parties who sold the real estate. 6. This case is currently set for trial in April, 2011 and the undersigned states that his clients need additional time to complete discovery as to additional claims. 7. The Petition for Declaratory Relief involves proceeds from the sale of real estate and the Third Party Defendants Portee anticipate filing a Quiet Title Action as to the title of the

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