In re Estate of Ricci

• Decision Date: 03 July 2003
• Citation: 827 A.2d 817,2003 ME 84
• Parties: ESTATE OF Joseph RICCI.
• Court: Maine Supreme Court

827 A.2d 817

2003 ME 84

ESTATE OF Joseph RICCI.

Supreme Judicial Court of Maine.

Argued: March 12, 2003.

Decided: July 3, 2003.

Edward S. MacColl, Esq. (orally), Thompson, Bull, Furey, Bass & MacColl, LLC, P.A., Portland, for appellant.

Dennis J. O'Donovan, Esq. (orally), McCandless, Epstein & O'Donovan, LLP, Portland, for appellee.

Panel: SAUFLEY, C.J., and RUDMAN, DANA, CALKINS, and LEVY, JJ.

CALKINS, J.

[¶ 1] Sharon Terry, personal representative of the Estate of Joseph Ricci and trustee of the Joseph Ricci Trust of 2000, appeals from the judgment entered in York County Probate Court (Nadeau, J.) ordering her to pay the spousal support claim of Ricci's former spouse, Cheryl Benton. Terry contends that the Probate Court erred in refusing to remove the matter as to the trust to the Superior Court; in ordering her, in her capacity as trustee, to pay the spousal support claim; in denying her request to reduce the amount of spousal support; in ordering a lump sum payment of the claim; and in granting Benton an award of attorney fees. We agree with Terry that, upon the trustee's timely removal notice, the Probate Court was required to remove any claim as to the trust to the Superior Court, and we vacate the portion of the judgment that requires Terry to pay a lump sum to Benton, or to purchase an annuity for Benton, from the assets of the Ricci Trust or Ricci Corporations. We clarify that the remaining portions of the judgment are directed only at Terry in her capacity as personal representative of the estate, and, as clarified, we affirm.

[¶ 2] Terry also appeals an advisory opinion of the York County Probate Court (Nadeau, J.) entered on October 25, 2002, ordering her to pay $9638.03 in additional attorney fees in the event that the judgment is affirmed on appeal. We consolidated both of the appeals for argument. We dismiss the appeal from the advisory opinion.

I. BACKGROUND

[¶ 3] Joseph Ricci died on January 29, 2001. Terry, his wife, was appointed the personal representative of his estate. Terry was also the trustee of the Joseph Ricci Trust of 2000, which had been established a year before Ricci's death. Ricci's will provided that the assets of his estate would pour over into the trust.

[¶ 4] Benton and Ricci were divorced in 1979, and pursuant to the settlement agreement, which was incorporated in the divorce judgment, Ricci was to pay spousal support of $40,000 annually to Benton in monthly installments of $3333.33. The agreement provided that the spousal support would terminate upon Benton's death, remarriage, or cohabitation, and, upon Ricci's death, spousal support would continue as an obligation of Ricci's estate. The divorce judgment was modified in 1990 to delete the cohabitation provision, but in all other respects the spousal support order remained in effect.

[¶ 5] Relying on the divorce judgment and agreement, Benton filed a claim for spousal support against Terry as the personal representative of the Ricci Estate. Terry neither disallowed nor paid the claim. Several months later, Benton filed a petition in Probate Court to resolve the claim for spousal support against the estate.

[¶ 6] Terry replied to Benton's petition and asked the court, inter alia, to modify or reduce the spousal support payments because of the limited resources of the estate and because the payments would not be tax deductible to the estate as they had been to Ricci when he was alive. Thereafter, Benton moved to add Terry, in her capacity as trustee of the Ricci Trust, as a respondent to the petition. After hearing and over Terry's objection, the court granted the motion. Terry, as trustee, then filed a notice of removal stating that the Ricci Trust desired to remove the matter to the Superior Court, but the Probate Court entered an order stating that the case would remain in Probate Court.¹ After unsuccessfully seeking a reconsideration of the removal issue, Terry moved to dismiss the amended petition for lack of jurisdiction over the trust. The court denied the motion.

[¶ 7] Benton and Terry were the only witnesses at the Probate Court trial which took place on July 22, 2002. Various documents, including the divorce judgment, were admitted in evidence. Thereafter, the court issued a decision containing its findings of fact and the judgment.

[¶ 8] The court stated that as of July 14, 2002, the amount of spousal support owing to Benton was $76,666.59. It determined that Benton had an investment portfolio valued at $875,000 and that because of her age and condition she was unemployable. It found that Ricci's lifestyle, income, and assets had greatly improved between the 1990 modification and his death, and that at the time of his death Ricci had a substantial income. The court noted that assets of the Ricci Trust included Golden Ark Enterprises, which owned all of the capital stock of Davric Maine Corporation and other corporations. Davric owned and operated Scarborough Downs, a harness racing facility. The court did not make any specific findings about the financial value of the estate or trust except that Ricci owed in excess of $1,000,000 in tax-related debts and had "a myriad of other debts" at the time of his death. Terry testified that the Ricci Estate and the Ricci Trust were jointly valued at $14,896,685. She acknowledged that the corporations had long-term value, but she testified that their liabilities exceeded assets by over $5.6 million. She testified to the short-term debt of the corporations, the cash flow problems, and the tax obligations. Terry acknowledged that the estate had received $1,050,399 in life insurance proceeds which she used to pay part of the taxes.

[¶ 9] Based on Terry's testimony, the court found that Terry had set aside sufficient funds to pay the accrued spousal support arrearage. Terry testified that she could pay the ongoing spousal support to Benton on a monthly basis but could not pay an accelerated lump sum. The court stated that Terry "has failed to perform an act required to be performed pursuant to a prior court order and that it is and has been within her power to so perform that act."

[¶ 10] The court held that as of July 14, 2002, the estate owed spousal support payments to Benton of $76,666.59, to which the court applied the statutory interest rate to arrive at a total of $84,927.90. The court denied Terry's request to reduce the amount of spousal support, holding that there had been no substantial change in circumstances to warrant a modification. Benton had also requested that future spousal support payments be reduced to present value and that she be paid a lump sum of that present value. The court found the present value of future support to be $496,962.16.

[¶ 11] The court noted that Ricci's will contained a provision directing the trustee to pay the Ricci Estate amounts from the trust for any debts of the estate and that a provision in the Ricci Trust also directed the trustee to pay any debts of the estate. The court stated that it was satisfied that Terry, in her capacity as trustee, could be required to pay the estate's obligations to Benton.

[¶ 12] The court ordered Terry to pay Benton $76,666.59 within fourteen days and the balance of the $84,927.90 within thirty days. The court further ordered Terry to pay Benton $3333.33 per month starting August 15, 2002, and to pay Benton $21,748.25 for the attorney fee expenses that she had incurred through July 1, 2002. Paragraph four of the order reads:

On or before August 1, 2003, the Respondent shall pay to the Petitioner, from the Trust-Ricci Corporation assets, if necessary, a lump sum payment in the amount of $496,962.16, less all spousal support payments made [to that time], in full and final settlement of the Petitioner's alimony/spousal support claim. Alternatively, the Respondent may at any time prior to August 31, 2002 purchase an annuity in favor of the Petitioner, guaranteeing timely monthly payments of all alimony sums due according to the terms of the Petitioner's divorce judgment....

[¶ 13] Benton subsequently filed a request for additional attorney fees. On behalf of the estate and the trust, Terry appealed the judgment.² While this appeal was pending, the Probate Court held a hearing on Benton's subsequent attorney fee request. The court stated that it was uncertain whether it had the power to issue an award of attorney fees while an appeal was pending. Because of that uncertainty the court issued what it termed an "advisory opinion" in which it held that Benton had incurred an additional $9638.03 in attorney fees. The court stated that once the appeal was resolved, if resolved favorably to Benton, Terry should pay Benton the additional sum of $9638.03. Terry noticed an appeal from the "advisory opinion," and we consolidated the two appeals.

II. REMOVAL

[¶ 14] After the court granted Benton's motion to amend her petition by adding Terry, in her trustee capacity, as a respondent, Terry filed a notice of removal pursuant to M.R. Prob. P. 71A. The removal of a proceeding from the Probate Court to the Superior Court is a ministerial act accomplished by the register upon the receipt of a notice of removal and payment of the entry fees by any party. M.R. Prob. P. 71A(b). For reasons that are not clear from this record, instead of the register forwarding a copy of the documents and docket entries of the matter to the Superior Court, the Probate Court intervened and ordered that the matter was "not subject to transfer under Me. R. Prob. R. 71A" and "shall remain in this court."

[¶ 15] The Probate Court and the Superior Court have concurrent jurisdiction over proceedings "concerning the administration and distribution of trusts." 18-A M.R.S.A. § 7-201(a) (1998). Although Benton has not filed a specific claim against the Ricci Trust, she named the trustee as a respondent in her petition. Once Terry, in her capacity as trustee, became a party to Benton's claim for spousal support, she was...