Larmore v. Fleet National Bank, No. 2003-1063 (R.I. Super 11/9/2006), 2003-1063.

CourtSuperior Court of Rhode Island
Writing for the CourtProcaccini
Docket NumberNo. 2003-1063.,2003-1063.
Decision Date09 November 2006

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No. 2003-1063.
State of Rhode Island, Superior Court
Providence, S.C.
Filed: November 9, 2006


Before the Court is the petition of James Larmore, III ("Petitioner" or "Larmore"), seeking to reform a 1968 trust of which he is settlor and lifetime income beneficiary. Respondents opposing the petition are Petitioner's cousins and their children, who are potential residual beneficiaries under the trust. Jurisdiction is pursuant to G.L. 1956 § 8-2-13 (2006).

Facts and Travel

Understanding the present posture of this case requires a retelling of Petitioner's youth and family history. Mr. Larmore was born on July 9, 1943 in Los Angeles, California. (Transcript of trial before Justice Procaccini, June 14, 2005,1 3.) The family patriarch was his maternal grandfather, Charles W. Brackett, a graduate of Harvard Law School and successful writer and producer of motion pictures in Hollywood. (Tr. 15.) Mr. Brackett had two daughters, Alexandra and Elizabeth—Petitioner's mother and aunt, respectively—who are now deceased. (Tr. 8.) Family success and wealth did not repel

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difficulties marked by extensive alcoholism in Petitioner's maternal grandmother, both his parents, and eventually himself. (Tr. 62-63.) The parents' alcoholism was severe, and it was Charles Brackett who filled a large void during Petitioner's youth, providing moral and financial support and taking Petitioner into his own home during his parents' worst drinking bouts. (Tr. 21-22.) When Petitioner was arrested in 1961 or 1962 for burglary and assault with a dangerous weapon, his grandfather hired an attorney, Grant Cooper, who was able to obtain an alternative disposition whereby Petitioner was sent to the Menninger Clinic, a psychiatric hospital in Topeka, Kansas. (Tr. 17-19.) Grant Cooper also represented Petitioner in settling a civil action that resulted from the assault and later assisted Petitioner in creating the trust now at issue. (Tr. 18-19.)

In the summer of 1964, while in Los Angeles on a furlough from the Menninger Clinic, Petitioner was again arrested for burglary and again received probation and was returned to the Clinic. (Tr. 25-26.) The following year, Petitioner's parents passed away in Los Angeles, their deaths occurring one month apart, while Petitioner was still hospitalized in Kansas. (Tr. 26.) Also during Petitioner's second stay at Menninger, his grandfather suffered one or more serious strokes and was left incommunicative. (Tr. 27.) While at the Menninger Clinic, Petitioner was diagnosed with a number of personality disorders. (Tr. 62.) He was finally discharged and returned to Los Angeles in June, 1968. (Tr. 27.)

Petitioner again stayed at his grandfather's home before moving into an apartment with Gaylan Woodard, a fellow patient at Menninger whom he married in August of 1968. (Tr. 4, 28.) Gaylan shared Petitioner's drinking habit and also suffered from

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psychiatric problems. (Tr. 31, 33.) This was the state of affairs in November 1968 when Petitioner created the trust that he now seeks to reform.

Shortly after his release from the Menninger Clinic and return to Los Angeles, Petitioner was telephoned by Grant Cooper, his previous attorney, and asked to an appointment at Cooper's home. (Tr. 29.) Cooper informed Petitioner that he had acquired funds that needed to be protected in case Petitioner was again institutionalized.2 (Tr. 10, 30, 68.) Cooper told Petitioner that the best way to attain this objective was by creating an irrevocable trust. (Tr. 12, 68.) Cooper also stated that it was the desire of Petitioner's grandfather, Charles Brackett, that Petitioner create a trust with these funds. (Tr. 12, 76.) A few months after this meeting, in November 1968, Petitioner executed the trust now at issue; he did not meet with Cooper again and believes that the trust was drafted by another attorney whom Cooper had contacted. (Tr. 7; Deposition of James Larmore, III conducted June 13, 2005,3 39-40.)

The trust document names the Industrial National Bank of Rhode Island as trustee and Spencer B. Eddy as co-trustee. (Plaintiff's Exhibit 1, Appx. A,4 1.) Spencer Eddy was a law partner of Charles Brackett in New York, and his name was inserted into the trust document as the co-trustee by Grant Cooper. (Tr. 14-15.) Mr. Larmore, as the trust settlor, is to receive trust income for the comfortable support of himself and any wife and children. (Trust, 4, ¶ 3.) Under the terms of the trust, Petitioner has a limited power of appointment: if he is survived by descendents or a spouse with whom he was living, the

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trust principal is to be distributed to those family members upon Petitioner's death according to terms of his Will and Testament. (Trust 5-6, ¶ 5.) If, however, Petitioner is survived by neither descendents nor a wife with whom he was living, the trust estate is to revert to Mr. and Mrs. Charles Brackett or their survivors. (Trust 6, ¶ 5.)

Petitioner has seen many changes in his personal life since 1968. He entered Alcoholics' Anonymous and had his last drink in 1974. (Tr. 31.) Petitioner no longer lives with his wife—the couple separated in 1985—but Petitioner has not taken any steps to legally terminate the marriage and continues to provide financial support to Gaylan. (Tr. 4, 33-34, 77-78.) He does not have any children. (Tr. 4.) Since 1992, Petitioner has been close with a new friend, Eileen Ito-Neufeld. (Tr. 32.) He is also close with Ms. Ito-Neufeld's adult daughter, Selena Robledo, and four grandchildren. (Id.) Petitioner wishes to be able to help provide for Ms. Ito-Neufeld and her family and is considering adopting Ms. Robledo, although her father is alive and no legal steps have been taken toward adoption. (Tr. 77, 86.) He also would like to continue giving some financial support to his current wife, whom he doesn't wish to abandon while she continues to cope with depression. (Tr. 33, 43.) His primary source of income comes to him as beneficiary of this trust, approximately $19,200 per year, and another trust set up by Charles Brackett that pays approximately $28,800 per year. (Tr. 82.) The present value of the trust corpus at issue is approximately $732,000. (Tr. 81.) In 2000 or 2001, Petitioner contacted Fleet National Bank, corporate successor as trustee, to inquire about gaining access to trust funds in order to pursue these objectives. (Tr. 35.) So started the process that now comes before this Court.

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Petitioner's effort to reform the trust first took the form of an uncontested petition, filed with this court in March 2003 after Respondents James Moore and Victoria Moore-Tennaro— Petitioner's cousins and potential residual beneficiaries under paragraph five of the Trust—indicated their consent and waived further notice. See Pl. Ex. 3 (Verified Petition to Reform Trust), Pl. Ex. 5 (Mr. Moore's Answer), Pl. Ex. 6 (Assent of Mr. Moore to judgment for Petitioner), Pl. Ex.9 (Ms. Moore-Tennaro's Answer.) It appeared that the case would continue to be uncontested one year later when an amended petition, adding Mr. Moore's children—Charlotte, Carter, and Stephanie—as Respondents and indicating their consent to reformation, was filed. See Pl. Ex. 1 (Amended Verified Petition to Reform Trust), Pl. Ex. 7-8 (Answers of two Moore children.) In those petitions, Mr. Larmore argued that circumstances had changed since he created the trust, and he sought modification of the trust to give him a power of revocation. (Pl. Ex. 1.) Shortly after that time, however, Mr. Moore became aware that the trust was of greater value than he previously believed and filed papers with the Court to revoke his assent and contest Petitioner's efforts.5 As a result of this change, Petitioner tells the Court he has abandoned his theory of changed circumstances and is no longer seeking the power to revoke the trust. (Post-trial Memorandum of Respondents 4.) Instead, Petitioner now seeks to have a greater power of appointment over the trust remainder, arguing that the limitation in paragraph five of the trust was a result of undue influence exerted by Grant Cooper and, through Cooper, Charles Brackett. (Id.)

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Standard of Review

In a non-jury trial, the trial justice sits as the trier of fact as well as of law. Hood v. Hawkins, 478 A.2d 181, 184 (R.I. 1984). "Consequently, he weighs and considers the evidence, passes upon the credibility of the witnesses, and draws proper inferences." The factual determinations and credibility assessments of a trial justice "traditionally accords a great deal of respect . . . [because it is] the judicial officer who actually observes the human drama that is part and parcel of every trial and who has had the opportunity to appraise witness demeanor and to take into account other realities that cannot be grasped from a reading of a cold record." In the Matter of the Dissolution of Anderson, Zangari & Bossian, 888 A.2d 973, 975 (R.I. 2006). Although the trial justice is required to make specific findings of fact, "brief findings will suffice as long as they address and resolve the controlling factual and legal issues." White v. Le Clerc, 468 A.2d 289, 290 (R.I. 1983); Super. R. Civ. P. 52(a).


It is no mere matter of course for the settlor of an inter vivos trust to modify its terms, for as the Rhode Island Supreme Court has stated:

"A court will not annul dispositions of property, because they are improvident, or such as a wise man would not have made or a man of nice honor consented to receive; but all the contracts of an individual, even his gratuitous acts, if formally executed and no power of revocation reserved, are binding, unless they can be avoided because of surprise, or mistake, want of freedom, undue influence, the suggestion of a...

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