Griffin v. Griffin, AY-310

• Decision Date: 18 February 1985
• Docket Number: No. AY-310,AY-310
• Citation: 463 So.2d 569,10 Fla. L. Weekly 450
• Parties: 10 Fla. L. Weekly 450 Margaret A. GRIFFIN, Orian P. Wells, Jr. and J. Emmett Smith Co-Trustees of the Testamentary Trust of Frederick L. Griffin, deceased, Appellant, v. Joan M. GRIFFIN, as Guardian for the Property of Thomas Lanier Griffin, Minor Beneficiary of the Testamentary Trust of Frederick L. Griffin, deceased, Appellee.
• Court: Florida District Court of Appeals

Page 569

463 So.2d 569

10 Fla. L. Weekly 450

Margaret A. GRIFFIN, Orian P. Wells, Jr. and J. Emmett Smith Co-Trustees of the Testamentary Trust of Frederick L. Griffin, deceased, Appellant, v. Joan M. GRIFFIN, as Guardian for the Property of Thomas Lanier Griffin, Minor Beneficiary of the Testamentary Trust of Frederick L. Griffin, deceased, Appellee.

No. AY-310.

District Court of Appeal of Florida,

First District.

Feb. 18, 1985.

Edward E. Hedstrom of Hedstrom & Smith, Palatka, for appellant.

Nancy E. Yenser of Salter, Feiber & Yenser, Gainesville, for appellee.

JOANOS, Judge.

This is an appeal from a final order requiring disbursements from a testamentary After hearings were held on appellee's petition, the trial court found that certain disbursements by the trustees to non-income beneficiaries (sons of Dr. Griffin's first marriage) were improper, because contrary to the settlor's intent. The court was of the opinion, however, that the disbursements were made in good faith, and were not prejudicial as there was sufficient trust res to comply with the settlor's intent to provide for the support of the minor income beneficiary, Thomas Lanier Griffin, and to provide higher education expenses of the income beneficiary, John Michael Griffin. Therefore, the trial court directed that the payments made to Dr. Griffin's older sons, who are non-income beneficiaries, would be considered an advancement of the final distribution provided for in the trust as to the respective interests of Frederick L. Griffin, Jr. and Joseph Garland Griffin, and declined to direct the trustees to repay personally these sums of money to the trust. The trial court also directed the trustees to make payments to appellee for the benefit of the minor income beneficiary Thomas Lanier Griffin, to provide for the higher education expenses of the income beneficiary John Michael Griffin, and to render an accounting to the beneficiaries.

trust established by Dr. Frederick L. Griffin. Dr. Griffin is survived by six children, three born of his first marriage and three born of his second marriage. Appellee, Dr. Griffin's second wife and guardian of his minor child Thomas Lanier Griffin, filed a petition in Alachua County Circuit Court seeking (1) an annual accounting of the trust, (2) an order compelling the trustees to pay back into the trust moneys allegedly improperly paid to non-income beneficiaries, (3) an order directing the trustees to cease making monthly payments to non-income beneficiaries, (4) an order awarding petitioner the costs of the action, and (5) an order granting "such other and further relief as the Court may deem just and proper."

The trustees filed a motion for rehearing, urging error in those portions of the order directing payments to Thomas Lanier Griffin and John Michael Griffin. On rehearing, the trial court reversed that portion of the order directing the trustees to make payments to John Michael Griffin, because John Michael Griffin is sui juris, was not a party to the suit, and did not reside in Alachua County, where the suit was filed.

The trustees have appealed that portion of the order directing them to provide for the support, maintenance and education of Thomas Lanier Griffin, alleging that this issue was not framed by the pleadings and the identical issue had been raised previously in other pending litigation.

Appellee, guardian of Thomas Lanier Griffin, has cross-appealed (1) the trial court's denial of her petition that the trustees be required to repay personally to the trust the sums expended on behalf of Dr. Griffin's older sons, and (2) the trial court's decision not to order the trustees to make payments from income of the trust to John Michael Griffin, an income beneficiary, for his education. We affirm in part and reverse in part.

When Dr. Griffin died on December 27, 1979, his three older children were ages 25, 23, and 20 respectively; and the children of his second marriage were ages 17, 16 and 12. No children were born of Dr. Griffin's third marriage to Margaret A. Griffin Gregory. Margaret A. Griffin Gregory is a co-trustee and co-appellant in this suit.

The trust paragraph applicable to this case provides:

(6) The foregoing trust estate shall be held administered and disposed of as follows:

(a) The net income of this trust shall be paid to or applied for the maintenance, education or support of my children, DAVID LEE GRIFFIN, JOHN MICHAEL GRIFFIN and THOMAS LANIER GRIFFIN, at such times and in such proportions as the Trustee shall deem proper in his absolute discretion, but with due regard to any principal distributions made hereunder. In the event the net income shall be insufficient to provide any of said children with adequate maintenance, education or support, the Dr. Griffin's will was admitted to probate on January 29, 1980. On December 17, 1981, appellee requested an annual accounting pursuant to the provisions of Section 737.303(4), Florida Statutes. On January 28, 1983, appellee filed Objections to Partial Trust Accounting, Petition for Complete Trust Accounting and Enforcement of Trust Provisions and Enforcement of Sanctions. Then on April 21, 1983, appellee filed an amended petition and objections. Paragraphs 12 and 13 of this amended petition alleged:

Trustee shall invade principal for this purpose and such invasion shall be made according to the needs of said children rather than according to any pro rata scheme of distribution. The Trustee is authorized to accumulate income in this trust to the extent that the same is not required for the payments and purposes hereinabove specified and any such accumulated income may be added to the corpus of the trust and invested or reinvested in the same manner as the original corpus. As a guide to my Trustee, but without any intent to restrict his discretion, it is my purpose that any of said children who desire to receive a higher education should be given such financial support as the trust is reasonably able to provide in order to allow said child or children to complete such higher education as they may desire. It is my primary intent to provide for the health, maintenance, support and education of my three youngest children, DAVID LEE GRIFFIN, JOHN MICHAEL GRIFFIN and THOMAS LANIER GRIFFIN; however, my Trustee is also authorized in the event of an emergency or hardship to pay or apply income or principal from this trust for the health or maintenance of my mother, VIRGINIA WILKIE, any of my older children, MARJORIE ELAINE GRIFFIN, FREDERICK L. GRIFFIN, JR. and JOSEPH GARLAND GRIFFIN, my wife MARGARET A. GRIFFIN, my aunts, DORES FAIR and MARY SMITH, and my cousin NANCY FAIR.

12. Said Accountings reflect monthly payments to Respondents, FREDERICK L. GRIFFIN, JR. and JOSEPH G. GRIFFIN, beneficiaries, who are not income beneficiaries of the Trust, but are authorized to receive funds from the Trust only in the event of "emergency" or "hardship" as provided by paragraph 4(6)(a) of the Last Will and Testament of Frederick L. Griffin. The Trust includes no provision for said monthly payments from the income of the Trust Assets to beneficiaries other than John, Thomas or David Griffin.

13. Said monthly payments to non-income beneficiaries of the Trust are depleting the income and interest of the Trust and are prejudicial to the interests of the Petitioner's ward and other income beneficiaries.

On February 12, 1983, the trustees filed a motion to dismiss or transfer the cause to Putnam County, stating as grounds therefor that (1) the will was admitted to probate in Putnam County and probate was still pending; (2) the trust was registered in Putnam County; (3) appellee had invoked the jurisdiction of Putnam County by filing a petition to require a trust qualification petition, and by filing petition to require trustees to pay reasonable support for beneficiaries; and (4) Putnam County is the county of residence of two of the three trustees.

At hearing on appellee's petition, counsel for the trustees objected to questions from opposing counsel on the subject of payments to the income beneficiaries. Trustees' counsel maintained that the matter was not an issue in the case, and that a suit was pending in Putnam County on this particular issue. Counsel for appellee took the position that the issue of the impropriety of payments to the non-income beneficiaries required the court to consider also the question of payments to the income beneficiaries. The court sustained the objection, but cautioned that the ruling would be reversed upon a showing that the trustees made payments after July 1983 to other than the income beneficiaries.

Evidence was adduced that the trustees had made payments of $150.00 monthly to Frederick L. Griffin, Jr. and Joseph Griffin during the time period that each young man was attending college. Margaret A. Griffin Gregory, co-trustee, testified that the payments had been made on the basis of the hardship provision of the trust, as perceived by the trustees. When asked to explain the basis of the hardship, she stated:

They, neither one of the boys, could afford to buy groceries. Fred, Jr. had to move out of his apartment, move in with his grandmother. He didn't have a car and neither--sometimes the boys would not even have enough to eat. And this, to me, was a hardship.

The trustees ceased making payments to Fred, Jr. and Joseph in March 1983 because the two older sons advised the trustees they needed no further help. At that time, both young men had withdrawn from school and had taken full-time jobs.

After some testimony concerning investment of the trust funds, counsel for appellee again sought to introduce testimony concerning payments to the income beneficiary. Following an objection from the trustees' counsel, the court asked whether the issue of present payment to the income beneficiary was before the court. Counsel for appellee again contended that it was an issue, apparently basing this position on the...