California Court of Appeal Jun 24, 2014 No. D064445Unpublished
Filed 6/24/14 Thornton v. Thornton CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SEAN DAVID THORNTON, D064445
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2013-00034838- PR-TR-CTL) MARY ANN THORNTON, Individually and as Trustee, etc.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of San Diego County, Jeffrey S.
Bostwick, Judge. Affirmed.
Sean David Thornton, in pro. per., for Plaintiff and Appellant.
Law Offices of Kenneth H. Miller, Kenneth H. Miller, Michael I. Miller; Law
Offices of Gregory Y. Lievers, Gregory Y. Lievers and Lorin R. Clark for Defendant and
Respondent.
This appeal arises from the denial of Sean David Thornton's (Sean's)1 petition in
probate court for a distribution under a trust. Sean attempted to remove his mother, Mary
Ann Thornton (Mary), as trustee of the Anne Frances Prusa Trust (the trust), based upon
his allegation that she committed a breach of trust by refusing to provide him funds under
the trust. The probate court denied his petition.
Sean, who is currently incarcerated at Mule Creek State Prison, and appears in this
action in propria persona, appeals, asserting he has a right to funds from the trust for his
health, support, education and maintenance. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Trust
Mary is the daughter of the settlor, Ann Francis Prusa (settlor), and Sean is the son
of Mary and the grandson of the settlor. Sean has been incarcerated at Mule Creek State
Prison since 2011.
The trust was created in 1988. A third amendment to the trust was executed in
2010. Pursuant to that third amendment the settlor could amend or revoke the trust in
whole or in part at any time during her lifetime. Moreover, of relevance to this appeal,
the third amendment gave the trustee wide discretion as to payments to Sean:
"At any time or times during the trust term, the trustee shall pay to or apply for the benefit of Sean as much of the net income and principal of the trust as the trustee deems proper for Sean's health, education, support, and maintenance. In exercising discretion, the trustee shall give the consideration that the trustee deems proper to
1 Because the parties share the same last name, in the interests of clarity we refer to them by their first names. We intend no disrespect. 2
all other income and resources that are known to the trustee and that are readily available to Sean for use for these purposes. All decisions of the trustee regarding payments under this subsection, if any, are within the trustee's discretion and shall be final and incontestable by anyone. . . . [¶] The trustee may choose, in their sole and incontestable discretion, to use any remaining proceeds from the principal and income of the Separate Share Trust for Sean, to purchase an annuity or some similar plan for Sean, in lieu of making discretionary payments to Sean, to provide payments to Sean over his lifetime or over a course of years as determined by the trustee." (Italics added.)
In February 2012, shortly before the settlor's death, a fourth amendment to the
trust was executed. That fourth amendment appointed Mary as trustee of the trust. The
fourth amendment also provided that, after various payments were made, 25 percent of
the remaining trust property would be distributed into a separate trust for the benefit of
Sean, and the remaining 75 percent would be distributed to Mary. The fourth amendment
also provided that Mary would act as trustee for Sean's trust.
The settlor passed away in March 2012. In November of that year Sean wrote to
Mary, asking for funds to support himself while he was incarcerated. According to Sean,
the funds would be used to buy "a TV, radio, package, and money to go to the store"
while in prison. Mary responded that she would not distribute trust funds directly to him
until he was released from prison, at which time an annuity would be established and
monthly payments provided to him.
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B. The Petition
In February 2013 Sean filed his initial petition. Thereafter, in May 2013 Sean
filed an amended petition, under Probate Code2 sections 16420, subdivision (a)(1) & 3,
and 1700, subdivision (a)(3) seeking, among other things, to have Mary removed as
trustee for allegedly breaching her duties by not sending him funds to which he was
entitled. Specifically, Sean sought "any amount not to exceed [$51,000]" in order for
him to "take college courses on business, secure funds to support his welfare, i.e., clothes
and shoes; cosmetics for his hygiene; and proper food for his health and nutrition from
packages and canteen ['store']."
Mary responded to the petition, asserting that she had the discretion whether to
make payments to Sean and that he was provided meals and housing by the state while
incarcerated. Mary also stated that she was not opposed to making payments to third
parties in order to allow him to pursue his education goals, but would not give funds to
him directly.
The court denied the petition.
DISCUSSION
A. Standard of Review
"The court in its discretion may make any orders and take any other action
necessary or proper to dispose of the matters presented by the petition, including
appointment of a temporary trustee to administer the trust in whole or in part."
2 All further undesignated statutory references are to the Probate Code. 4
(§ 17206.) Accordingly, the standard of review in this matter is abuse of discretion.
(Manson v. Shepherd (2010) 188 Cal.App.4th 1244, 1258.)
B. Analysis
Sean cannot show that Mary abused her discretion in refusing to pay money
directly to him while he was incarcerated. The trust explicitly states, in the third
amendment, that Mary has the discretion to determine how and when monies would be
paid to him. It does not require that money be paid directly to him. It also expressly
states that Mary has the option of setting up an annuity to provide for his needs, which
Mary chose to do.
Courts will not interfere with the discretion given a trustee, except to prevent the
trustee from abusing it. (Hearst v. Ganzi (2006) 145 Cal.App.4th 1195, 1208.) "If
discretion is conferred upon the trustee in the exercise of a power, 'the court will not
interfere unless the trustee in exercising or failing to exercise the power acts dishonestly,
or with an improper even though not dishonest motive, or fails to use his judgment, or
acts beyond the bounds of a reasonable judgment.' " (Id. at p. 1209.) Sean cannot show
that Mary acted in this manner in exercising her discretion pursuant to the terms of the
trust.
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DISPOSITION
The order denying Sean's petition is affirmed. Mary shall recover her costs on
appeal.
NARES, Acting P. J.
WE CONCUR:
McDONALD, J.
O'ROURKE, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trustee did not abuse her discretion in refusing to make direct payments to the beneficiary while he was incarcerated, as the trust granted the trustee sole and incontestable discretion regarding the timing and method of distributions.
Issues
Did the trustee abuse her discretion by refusing to make direct payments to the beneficiary from the trust?
Did the probate court err in denying the beneficiary's petition to remove the trustee for breach of duty?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“All decisions of the trustee regarding payments under this subsection, if any, are within the trustee's discretion and shall be final and incontestable by anyone.”
“Sean cannot show that Mary abused her discretion in refusing to pay money directly to him while he was incarcerated.”
“Courts will not interfere with the discretion given a trustee, except to prevent the trustee from abusing it.”