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COURT OF APPEALS
DECISION
NOTICE
DATED AND FILED
This opinion is subject to further editing. If
published, the official version will appear in the
bound volume of the Official Reports.
November 25, 1998
A party may file with the Supreme Court a
                                                                               Marilyn L. Graves         petition  to  review  an  adverse  decision  by  the
                                                                               Clerk, Court of Appeals   Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                               of Wisconsin              STATS.
No.                                                                            97-2910
STATE OF WISCONSIN                                                             IN COURT OF APPEALS
DISTRICT II/IV
IN THE MATTER OF THE TRUST CREATED UNDER THE
LAST WILL AND TESTAMENT OF MARION A.
TALLMADGE, DECEASED:
HARROLD J. MCCOMAS AND WAYNE R. LUEDERS, CO-
TRUSTEES,
APPELLANTS-CROSS-RESPONDENTS,
V.
LOREN TALLMADGE, BENEFICIARY,
RESPONDENT-CROSS-APPELLANT,
LAURA TALLMADGE,
RESPONDENT-(IN T.CT.).
APPEAL and CROSS-APPEAL from an order of the circuit court
for  Waukesha  County:    PATRICK  L.  SNYDER,  Judge.    Modified  and,  as
modified, affirmed.




No. 97-2910
Before Vergeront, Roggensack and Deininger, JJ.
VERGERONT, J.      Harrold  McComas  and  Wayne  Lueders,  co-
trustees of the W. David Tallmadge Trust, appeal the trial court’s construction of
the Last Will and Testament and Codicil of Marion Tallmadge, which created the
trust.   The disputed provision concerns the trustees’ obligations with respect to
Loren Tallmadge, the minor daughter of David Tallmadge.   Loren cross-appeals,
contending that the trial court erroneously determined the trustees had fulfilled
their  duties  to  her  under  the  trust  as  construed  by  the  trial  court  and  also
contending that the court erred in denying her relief under § 701.06(4), STATS.,1
which  governs  claims  for  the  support  of  children  of  trust  beneficiaries.    We
conclude that the trial court erroneously construed the will to include David’s
dependents as primary beneficiaries, and that Loren, like David’s other issue,
belongs  instead  to  the  secondary  class  of  beneficiaries.    With  the  trustees’
obligations thus construed, Loren does not present an argument that they have not
fulfilled  their  duties  to  her.    We  also  conclude  that  the  trial  court  did  not
erroneously deny Loren relief under  § 701.06(4).   We therefore affirm the trial
1    Section 701.06(4), STATS., provides:
(4)  CLAIMS  FOR  CHILD  SUPPORT.                                                             Notwithstanding  any
provision in the creating instrument or subs. (1) and (2), upon
application  of  a  person  having  a  valid  order  directing  a
beneficiary to make payment for support of the beneficiary's
child, the court may:
(a) If the beneficiary is entitled to receive income or principal
under the trust, order the trustee to satisfy part or all of the claim
out of part or all of payments of income or principal as they are
due, presently or in the future;
(b) In the case of a beneficiary under a discretionary trust,
order the trustee to satisfy part or all of the claim out of part or
all of future payments of income or principal which are to be
made pursuant to the exercise of the trustee's discretion in favor
of such beneficiary.
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No. 97-2910
court’s order dismissing her petition, although we reach a different conclusion on
the correct construction of the will and codicil than did the trial court.
BACKGROUND
Marion   Tallmadge’s   Last   Will   and   Testament   and   Codicil
(collectively, the will) created a trust out of the residue of her estate, designated as
the  W.  David  Tallmadge  Trust.    David  was  Marion’s  only  surviving  child.
Paragraph A of the fifth article of the codicil is the subject of this                     appeal.   It
provides:
(A) So long as my son shall live, the trustees shall
pay to or apply for the benefit of my son such part of the
annual net income from his trust fund as the disinterested
and  non-subordinate  trustee  or  trustees  shall,  after  a
thorough consideration of the expenditures made by him
within the current year for his support, maintenance and
other necessities and the support, maintenance, education,
travel and other necessities of those dependent on him for
support, deem wise and expedient and in his best interests.
Any part or all of the balance of the annual net income of
the trust fund may, in the discretion of the disinterested and
non-subordinate  trustee  or  trustees,  be  paid  over  and
distributed to or applied for the benefit of the issue of my
son,  or  one  or  more  of  them,  each  for  his  undivided
account, in such proportions as the disinterested and non-
subordinate trustee or trustees may deem advisable.   The
balance of the net income of the trust fund not so paid over
to or applied for the benefit of the issue of my son, as
aforesaid,  may  be  added  to  any  subsequent  income
payments from such fund and, until so distributed, may be
regarded for all purposes as part of the principal of such
fund, subject, in the discretion of the disinterested and non-
subordinate trustee or trustees, to again being regarded as
income and being distributed at any later date to any person
or persons to whom current income of the trust fund may
be distributed.
Paragraph B of this article permits the trustees to distribute payments from the
principal of the trust to David during his lifetime, and is not at issue.
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No. 97-2910
The  will  was  probated  in  Waukesha  County  and  has  been
administered by the probate division of the circuit court of that county.   Loren is
the minor daughter of David and Laura Tallmadge, David’s estranged third wife.
Loren lives with her mother in California.   At the times relevant to this dispute,
David  has  been  incarcerated  in  California.     Laura  initiated  a  petition  for
construction of the trust and to compel support in the circuit court of Waukesha
County on her own behalf and in her capacity as legal guardian for Loren.   The
petition asked for a finding that the trustees were obligated under the terms of the
trust to pay for the benefit of Laura and Loren amounts that the California courts
had ordered as child and spousal support; that the trustees were obligated by
§ 701.06(4)(a), STATS., to pay the child support payments for Loren’s benefit; and
that  the  will  entitled  not  only  David,  but  also  Laura  and  Loren,  as  persons
dependent upon David for support, to priority over that of David’s adult children.
After a trial to the court, the court entered written findings of fact
and conclusions of law, and an order denying the petition.   The court construed
Paragraph A to create two categories of income beneficiaries, the first consisting
of David and those dependent upon him for support and the second consisting of
the issue of David.   The court found that Loren was a dependent of David, and
Laura was a dependent to the extent that there is a California court order for her
spousal maintenance.   The court also found that the trust was discretionary and the
trustees had declined to make child or spousal payments for appropriate reasons,
those being:   the Charles E. Albright Trust was a non-discretionary trust available
for those purposes; Loren had received some distributions from the Tallmadge
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No. 97-2910
Trust;2 there was a dispute between Laura and David; and Laura was not protected
by  § 701.06(4), STATS.    The court noted that, although it was dismissing the
petition, it would consider Loren’s renewed request for child support payments
from the Tallmadge Trust, if those sums were not available from the Albright
Trust or another source.
The trustees appealed the trial court’s construction of the will, and
Loren cross-appealed the court’s decision that the trustees acted appropriately in
refusing to make the child support payments and in its decision to dismiss the
petition without ordering the trustees to make the child support payments under
§ 701.06(4), STATS.   Laura has been voluntarily dismissed as a party to the appeal
and cross-appeal.
DISCUSSION
We  first  consider  the  trustees’  contention  that  the  trial  court
erroneously construed  Paragraph A  because  the  first category of  beneficiaries
under that paragraph consists only of David, not his dependents, and Loren is
included only in the second class of beneficiaries along with his other issue.   The
construction of a testamentary document presents a question of law, which we
review de novo.   Furmanski v. Furmanski, 196 Wis.2d 210, 214, 538 N.W.2d
566, 567 (Ct. App. 1995).   The object of will or trust construction is to determine
the intent of the testator or settlor.   Id. at 215, 538 N.W.2d at 568.   We determine
the intent from the language of the document itself, considered in light of the
2    In its ruling from the bench, the court found that the trustees were making distributions
to Loren of $5,000 per year plus a year-end distribution.   The trustees submitted evidence at trial
showing that between 1991 through the first quarter of 1997, the trustees distributed between
$19,000 and $37,000 to Laura, guardian of Loren, each year.
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No. 97-2910
circumstances surrounding the testator or settlor at the time the document was
executed.   Id.   The language of the document is the best evidence of the testator’s
or settlor’s intent, and we therefore look first to the language of the document.   Id.
If there is no ambiguity in the language of the document, there is no need to look
further to determine the testator’s or settlor’s actual intent.  Id.
We conclude that the language in the first sentence of Paragraph A
unambiguously provides that the trustees have an obligation, as they “deem wise
and expedient and in his best interests” to pay net trust income only to David or
apply it for only his benefit.   It is true that in deciding what is “wise and expedient
and  in  his  best  interests,”  the  trustees  have  an  obligation  to  consider  the
“expenditures made by him within the current year for his support, maintenance
and other necessities and the support, maintenance, education, travel and other
necessities of those dependent upon him for support.”   However, that does not
impose on the trustees a duty to treat David’s dependents the same as David:   it
does  not  make  his  dependents  primary  beneficiaries,  as  David  is.    Loren  is
included under the second sentence of Paragraph A, under which the trustees have
the discretion to make distributions from the balance of the net trust income to, or
for the benefit of, David’s issue.
In  its  comments  from  the  bench,  the  trial  court  focused  on  the
language that provides for “apply[ing] for [David’s] benefit” the net trust income,
and the language that the trustees must consider his expenses for the current year,
for not only his support, but also for the “support, maintenance, education, travel
and other necessities of those dependent on him for support.”   It is this language
that, in the trial court’s view, obligates the trustees to treat David’s dependents as
primary  beneficiaries,  giving  them  a  priority  over  his  other  issue.     Loren
emphasizes this argument on appeal.
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No. 97-2910
However, we cannot agree with this construction.   The payment to
David or application of funds for his benefit is to be made after a  “thorough
consideration of the expenditures made by him within the current year for his
support  … and the support  … of those dependent on him for support.”    The
explicit condition is that David is expending for his dependents, and the trustees
take those expenditures into account in deciding how much to pay to David or
apply to his benefit.   While the trustees may make payments on David’s behalf
rather than paying him directly, that authority is also tied to a consideration of
David’s expenditures for his support and for his dependents’ support within the
current year.
The trial court’s comments also indicate it perceived good reasons
for treating David’s minor, dependent child differently from his adult children, and
Loren repeats this point on appeal.   But our task is to construe the language of the
will.   That language does treat David’s dependent issue differently than it treats his
non-dependent issue to the extent that David’s expenditures for his dependent
issue’s support are to be considered by the trustees in carrying out their duties to
David under the first sentence of Paragraph A.   However, all David’s issue are
treated  the  same  by the  plain  terms  of  the  will in  that  the  trustees have  the
discretion  to  make  distributions  to  them  from  the  balance  of  the  annual  net
income, after fulfilling their duty to David.   Of course, the fact that an issue is a
minor and is not being supported by David may properly enter into the trustees
exercise of their discretion under the second sentence of Paragraph A.   But we
cannot conclude that the will imposes on the trustees a duty to give priority to
David’s dependent issue over his non-dependent issue.
On her cross-appeal, Loren argues that the trial court erred in ruling
that the trustees had fulfilled their duty to make distributions to Loren.   As we
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No. 97-2910
understand this argument, it is premised on the trial court’s ruling that Loren, as a
dependent, was a primary beneficiary along with David under the first sentence of
Paragraph A.   Loren does not argue that the trustees have not fulfilled their duty if
Loren is not a primary beneficiary.   Since we have concluded that she is not, we
do not consider this argument further.
Loren’s  second  argument  on  cross-appeal  is  that  the  trial  court
erroneously denied her claim for relief under  § 701.06(4), STATS.    In its oral
decision, the trial court reasoned that the statute authorizes it to order the relief
Loren seeks but does not require it to do so.   The court stated that it was reluctant
to invade this trust if there were other funds available for child support, but it was
fully prepared to do so if there were not.   The court was aware that there were
efforts to obtain payments for the court-ordered child support from the Albright
Trust and was of the view “that would come through.”   However, in the event it
did not, the court made it clear that it would consider a reapplication of Loren’s
request under  § 701.06(4) for an order for payment from the Tallmadge Trust.
Loren contends that § 701.06(4) does not permit a court to require that a claimant
exhaust other means of satisfying the child support order before granting relief.
Before  the  appellate  briefing was completed, the  trustees filed a
motion to dismiss Loren’s cross-appeal on the ground that the statutory issue was
moot  because  the  Milwaukee  County  Circuit  Court  entered  an  order  on
September 3,  1997,  providing  that  the  Albright  Trust  shall  pay  child  support
arrears,  as  well  as  David’s  court-ordered  monthly  child  support  commencing
August 1997, if not paid by him voluntarily or recovered from other sources.   In
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No. 97-2910
an  order  dated  April  22,  1998,  we  declined  to  dismiss  the  cross-appeal,  and
instructed the parties to address the mootness issue in their briefs.3
The trustees assert in their responsive brief on the cross-appeal that
they understand that as a result of the order entered by the Milwaukee County
Circuit Court all past due child support owed to Loren has been paid, her monthly
court-ordered support continues to be paid, and neither the Albright trustees nor
David is seeking to overturn that order.   Loren has argued, however, that there is
no guarantee that these payments will continue, and if  we do not decide the
correctness of the trial court’s application of  § 701.06(4), STATS., she may be
precluded from making this same argument should she need to apply to the court
for payment from the Tallmadge Trust under  § 701.06(4) at some future time.
Because it appears that there has been and continues to be litigation concerning
David’s child support obligations and whether he is meeting them, and because we
cannot conclude on this record that the payments from the Albright Trust will
continue until Loren is no longer a minor, we address the § 701.06(4) issue.
The proper construction of a statute is a question of law, which we
review de novo.   See Lincoln Sav. Bank, S.A. v. DOR, 215 Wis.2d 430, 441, 573
N.W.2d 522, 526 (1998).   The aim of all statutory construction is to discern the
intent of the legislature.   Id.   We begin with a reading of the language of the
statute, and if that is not ambiguous, our task is to apply that language to the task
at hand.   Id.
3    The trustees also argued in support of their motion to dismiss that the first issue Loren
raises on her cross-appeal is moot because of the Milwaukee County Circuit Court order.   In our
order denying the motion to dismiss, we stated our disagreement with this contention, and for that
reason we have addressed the first issue on cross-appeal without discussing mootness.
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No. 97-2910
We agree with the trial court that § 701.06(4)(b), STATS., does not
require a court to order trustees to satisfy a child support order, but rather provides
that the court  “may”  so order under the conditions established in  the statute.
Section 701.06(4).   The ordinary meaning of “may” is permissive.   See City of
Wauwatosa v. County of Milwaukee, 22 Wis.2d 184, 191, 125 N.W.2d 386, 389
(1963).4   See also Grohmann v. Grohmann, 180 Wis.2d 690, 695, 511 N.W.2d
312, 314 (Ct. App. 1993), aff’d on other grounds, 189 Wis.2d 532, 525 N.W.2d
621 (1995) (§ 701.06(4)(b) “grants courts the authority to order trustees to satisfy
a child support obligation directly from discretionary payments that the trustees
have decided to authorize”).   Therefore, the question before us is whether the trial
court  properly  exercised  the  discretion  granted  it  by  the  statute.    We  affirm
discretionary decisions if the trial court considered the relevant facts, applied the
correct law, and used a rational process to reach a reasonable result.   See State v.
Gudenschwager, 191 Wis.2d 431, 440, 529 N.W.2d 225, 229 (1995).
We conclude that the trial court properly exercised its discretion in
requiring Loren to first request satisfaction of the child support order from the
Albright Trust.   The court correctly recognized that the trustees of the Tallmadge
Trust had discretion concerning distributions to Loren.   Based on the evidence
presented,5 the court considered it likely that the Albright Trust would make the
court-ordered payments, and there was in fact a court order issued to that effect
within three months of entry of this trial court’s decision.   It is reasonable for a
4    Although it is possible for “may” to be construed as mandatory, that is only if the
statute demands such a construction in order to carry out the legislative intent.   Schmidt v. Dep’t
of Resource Dev., 39 Wis.2d 46, 53, 158 N.W.2d 306, 310 (1968).  That is not the case here.
5    McComas testified that the Albright Trust was a mandatory income distribution trust
with about $200,000 of income each year.   He further testified that under the statute governing
such trusts, the child support payments in question could be obtained from it.
10




No. 97-2910
court ruling on an application under  § 701.06(4), STATS., to consider whether
there are other sources to satisfy the court-ordered child support obligation.
We reject Loren’s argument that the court’s decision is inconsistent
with the purpose of the statute.   The purpose of the statute, evident from its plain
language,  is  to  provide  a  means  of  satisfying  court-ordered  child  support
obligations that does not depend on direct payment by the parent, when the parent
is the beneficiary of a trust.    The trial court’s decision is consistent with this
purpose because it permits Loren to reapply if the Albright Trust does not satisfy
her claim.   Section 701.06(4), STATS., does not require that courts order trustees to
satisfy claims regardless of other means available, and we may not read such a
requirement into the statute.
Loren describes the effect of the trial court’s decision as “placing an
unreasonable  legal  and  financial  burden  on  the  child,”  and  permitting  the
“deadbeat  parent”  to                                                                      “win  a  war  of  attrition.”     It  may  be  that  in  some
circumstances, a court’s decision that a claimant under § 701.06(4), STATS., must
first  seek  other  resources  for  satisfaction  of  a  child  support  order  would  be
unreasonable, but that is not the case here.
In  summary,  we  agree  with  the  trustees  that  the  trial  court
erroneously  construed  the  first  sentence  of  Paragraph  A  to  include  David’s
dependents as primary beneficiaries of the trust, along with David.   It is the second
sentence of Paragraph A, not the first, which governs the trustees’ duties with
respect to Loren and to David’s other issue.   Loren does not advance an argument
that the trustees have not fulfilled their duty to her under the instrument as we
have  construed  it.    We  also  conclude  that the  trial court properly interpreted
§ 701.06(4),  STATS.,  and  properly exercised  its  discretion  in  denying  Loren’s
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No. 97-2910
statutory claim but permitting her to reapply.   We therefore modify the trial court’s
decision concerning the construction of Paragraph A, and, as modified, affirm the
order dismissing Loren’s petition.
By the Court.—Order modified and, as modified, affirmed.
Not recommended for publication in the official reports.
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