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In re Estate of Esterbrook11/24/2003
ses on weekends after they went to live with King. It was the Simmonses who negotiated-and petitioned the District Court for approval of-the settlements with Rail Link and BNSF for the children.
The Simmonses arguably have claims against the trust estates for their care of the children. In addition, they contributed monies to which they were entitled from Rail Link and BNSF for their own injuries and damages from the train derailment and chlorine spill to the children's settlements. We hold the District Court did not err by including the Simmonses as parties to future matters regarding the conservatorship.
ISSUE TWO
Did the District Court err in requiring the Simmonses' consent for stipulations for disbursement of settlement monies Roxanne, Russell and Samantha received from Rail Link and BNSF?
King says the District Court erred in requiring the Simmonses' consent for disbursement of settlement monies Roxanne, Russell and Samantha received from Rail Link and BNSF. She claims the Simmonses' interest ended with the dissolution of their courtappointed guardianship of the children. This issue is simply a restatement of Issue One, phrased differently.
We held above that the Simmonses are proper parties to future conservatorship proceedings. Having done so, we also hold the District Court did not err in including the Simmonses, along with their son and King, as parties to any stipulations for disbursal of settlement monies.
ISSUE THREE
Did the District Court err in failing to direct Schulte to establish special needs trusts?
King claims the District Court erred in ordering Schulte to deposit the settlement proceeds in interest-bearing accounts without specifying the terms of special needs trusts. It appears that the District Court concluded that since monies were provided to the children by Rail Link and BNSF in settlement of their personal injuries, such funds should be used for the payment of any necessary medical expenses rather than allow the children to have at least part of their needs met through their eligibility for Medicaid.
King failed to present any evidence at the hearings in the District Court concerning approval of the proposed settlements, or more specifically any evidence or clearly defined argument supporting the need or basis for establishing the special needs trusts. Normally, we will not hold a district court in error for a proceeding in which the parties acquiesced. State v. LaDue , 2001 MT 47, 23, 304 Mont. 288, 23, 20 P.3d 775, 23.
Correspondingly, King does not provide us much more on appeal. In her opening brief on appeal, King sets forth several definitional authorities regarding what a special needs trust is, including a statement that " nder certain circumstances, a special needs trust may be established" for particular purposes. (Emphasis added). She does not, however, advance any authority under which it would be error not to establish such trusts in the present case. While she does cite to one case in her reply brief, it is well-established that we do not consider new matter raised for the first time in a reply brief. See Rule 23(c), M.R.App.P.; State v. Sattler , 1998 MT 57, 47, 288 Mont. 79, 47, 956 P.2d 54, 47; EBI/Orion Group v. Blythe (1997), 281 Mont. 50, 57, 931 P.2d 38, 42.
With the record presented, we normally would not grant relief to a litigant who fails to document its arguments sufficiently in the district court and this Court. Consequently, we understand the District Court's position in this matter. However, we are concerned about the well being and protection of the minors involved in this proceedi
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