Kelley v. Kelley

• Decision Date: 10 September 2014
• Docket Number: 4D13–576.,Nos. 4D13–21,s. 4D13–21
• Parties: Gordon Phelps KELLEY, III, Appellant, v. Joanna KELLEY, individually, and Joanna Kelley and Northern Trust Bank of Florida, N.A., as Co–Trustees of the Marital Trust created under the 2008 will; Bank of New York, Camille Weiss and Errett Van Nice, as Co–Trustees of the Gordon P. Kelley, Jr., Agreement, Amnesty International of the U.S.A., Inc., Cousteau Society and World Wildlife Fund, Appellees.
• Court: Florida District Court of Appeals

147 So.3d 597

Gordon Phelps KELLEY, III, Appellant
v.
Joanna KELLEY, individually, and Joanna Kelley and Northern Trust Bank of Florida, N.A., as Co–Trustees of the Marital Trust created under the 2008 will; Bank of New York, Camille Weiss and Errett Van Nice, as Co–Trustees of the Gordon P. Kelley, Jr., Agreement, Amnesty International of the U.S.A., Inc., Cousteau Society and World Wildlife Fund, Appellees.

Nos. 4D13–21
4D13–576.

District Court of Appeal of Florida, Fourth District.

Sept. 10, 2014.

147 So.3d 599

Edward Downey and R. Lee McElroy, IV of Downey & Downey, P.A., Palm Beach Gardens, for appellant.

Bernard Allen and Frank T. Adams of Katz Barron Squitero Faust, Miami, for appellee Joanna Kelley.

James R. George and Tattiana Brenes–Stahl of Greenberg Traurig, P.A., Fort Lauderdale, for appelle, Northern Trust Bank of Florida, N.A.

Douglas F. Hoffman of Rudolf & Hoffman, P.A., for appellees Amnesty International of the U.S.A., Inc., Cousteau Society and World Wildlife Fund.

Opinion

GROSS, J.

At issue is a third party's ability to collaterally attack a foreign state's judgment within the confines of the Full Faith and Credit Clause. Appellant Gordon Kelley III (“Gordon III”), a son disinherited under his father's will, challenges two orders that dismissed his actions seeking to invalidate his father's exercise of a limited power of appointment on the grounds that his father was not legally married to his second wife, the intended beneficiary of the appointment. Specifically, Gordon III alleged his father's 1979 Nevada divorce to a prior wife was void since neither party satisfied that state's jurisdictional residency requirement, making the father's marriage to his current wife bigamous-and thus void as against public policy.

Focusing on the full faith and credit aspect of the claim, a collateral attack on a foreign state's judgment may be entertained only if the attack would be permissible in the foreign state. Since both Gordon III's father and his prior wife bound themselves to the divorce decree by participating in the Nevada proceeding and since, by statute, Nevada prohibits third-party attacks on divorce decrees binding upon the parties, so too Gordon III is barred from collaterally attacking the decree in Florida. Accordingly, we affirm.

Factual Background

The seeds of this controversy were planted on February 23, 1956, when Gordon III's grandfather, Gordon P. Kelley (“Gordon I”), created the Gordon P. Kelley Trust Fund (“the Kelley Trust”), an irrevocable trust benefiting his children. Per the Kelley Trust's terms, upon Gordon I's death, the trust estate was split into separate trust funds, with each of his children receiving “so much of the net income of such funds as the Trustees in their discretion ... deem[ed] reasonably necessary to provide for the[ir] support and education.” Any remaining income not disbursed to the child would accumulate and be added to the child's trust principal.

147 So.3d 600

The Kelley Trust conferred upon each child the limited testamentary power to appoint a beneficiary for the trust principal, with the limitation that the selection fall within four recipient classes: (1) Gordon I's lawful descendants, (2) the spouses of such descendants, (3) the child's spouse, or (4) certain charitable organizations. Failure to make a valid appointment would result in the principal being distributed to the child's descendants per stripes.

Relying upon this provision, Gordon III's father (“Gordon Jr.”) exercised his power of appointment through Article IV(A) of his last will and testament (“the Will”), directing that his trust principal pass into a “Marital Trust.” As defined within the Will, the Marital Trust dictated that Gordon Jr.'s wife, appellee Joanna Kelley (“Joanna”), receive discretionary income during her lifetime, with the remainder passing upon her death to appellees Amnesty International of the U.S.A. Inc, the Cousteau Society, and the World Wildlife Fund. The Will expressly disinherited Gordon III.

Procedural Posture

Following Gordon Jr.'s death, Joanna, as personal representative for his estate, petitioned for administration, requesting that the Will be admitted into probate. Not succumbing to his disinherited status, Gordon III responded by filing a petition in the probate court seeking (1) to revoke probate and (2) to declare the exercise of Gordon Jr.'s power of appointment improper as conferred under the Kelley Trust. In addition, Gordon III filed a complaint in the circuit court seeking declaratory relief pursuant to sections 86.041 and 736.0201(4)(e)-(f), Florida Statutes (2010), mirroring the language of the second amended petition's Count IV.

In Count IV, Gordon III sought a declaration finding Gordon Jr.'s exercise of his power of appointment invalid since Joanna was not his legal spouse, and thus was “not a permissible appointee” under the Kelley Trust. The count alleged that in 1979 Gordon Jr.'s first wife, Holly Burguieres, “appeared in Nevada for a ‘quickie divorce’ ” and secured a divorce decree after falsely asserting she was a resident of Nevada. Evidence of the ruse was allegedly memorialized by a financial agreement confirmed and incorporated by the trial court in its final dissolution judgment, which reflects that Burguieres actually resided in Mexico City.

Alleging that neither Burguieres nor Gordon Jr. satisfied Nevada's six-week residency requirement, Gordon III contended the Nevada court lacked subject matter jurisdiction over their case, rendering the divorce decree void. Building upon this revelation, since Gordon Jr. was still legally “married” to Burguieres, his marriage to Joanna would be bigamous—and thus void as against public policy—making Gordon Jr.'s exercise of his power of appointment in Joanna's favor invalid, since she did not fall within the four classes of beneficiaries permitted by the Kelley Trust. As a result, Gordon III averred “all assets of the [Kelley Trust] are distributable to [himself] as the default taker.”

The Trial Court's Order

Upon the appellees' collective motions, the trial court entered an order dismissing Counts III¹ and IV of the second amended petition, confirming the validity of Joanna's marriage to Gordon Jr. With regard to Count IV, the trial court found Gordon III substantively barred from collaterally attacking the Nevada decree since Gordon Jr.'s participation in the proceeding bound

147 So.3d 601

himself—and Gordon III—to the judgment. Facing the same allegations as Count IV, the trial court entered a nearly identical order dismissing Gordon III's complaint for declaratory relief. As the issues presented in Gordon III's complaint and second amended petition overlap, both cases have been consolidated for the purposes of this appeal.

Full Faith and Credit

Gordon III contends the trial court was “not required or entitled to give full faith...