I’ve transcribed the document so we can have it on the thread. I have reduced everyone’s names to initials, including the judge and attorney’s – if this is not the form, I’m sorry! I’d never pick a fight with judges and attorneys. Fellow posters, please feel free to quote and bold anything you think deserves it. I can see quite a few examples myself.
Superior Court of California
County of Orange
Lamoreaux Justice Centre
Minute order
Date: 12/20/2012 Time: 11.39 am Dept L72
Judicial officer presiding: MFS
Clerk: AB
Reporter/ERM: None
Bailiff/Court attendant: None
Case No: 30-2009-00297798-PR-TR-LJC Case init date: 08/28/2009
Case Title: Harrod-Trust
Case Category: Probate Case Type: Trust proceedings
Event ID/Document ID: 71623872
Event Type: Under submission ruling
Appearances
CD: 4/5/12
On December 5, 2012, trial went forward on the petition of PSB and RDB for an Order Directing FH (hereinafter ‘F’, no disrespect intended) to Pay Rent for the Use and Possession of Property Located at Carnation Drive, Placentia, California, and in the Alternative Reduce the Spousal Support as a Result of Free Rent on the Conservatorship Matter (petition filed April 5, 2012). The trial lasted less than a day, indeed, less than half a day, and the parties thus are not entitled to a statement of decision. CCP section 632.
Subsequent Trust Petition filed by PSB and RDB is denied:
Discussion
A Settlement agreement entered into in April of 2010 (“SA”-Exhibit 2) resolved the 8/28/09 Petition of these petitioners to be appointed successor trustees of the Harrod Family Trust (“HFT”-Exhibit 1). Objections were filed 3/1/10. On 8/27/09, Petitioners filed a petition to be appointed conservators of the estate of Robert Harrod (“Bob”
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. F filed objections on 10/19/09. The matter was mediated before retired Judge AG. In consideration of the terms recited in the SA, F withdrew her objections to both petitions. The Trustees rely on the phrase “until further court orders” as it applies to the spousal support (3e), to suggest that it is modifiable. This is not an unreasonable interpretation. The question, however, is whether the spousal support amount should be modified due to a change in circumstances since the order was made. Nothing has changed that was not in existence when the SA was made.
The petitioners/trustees/conservators agreed to pay support of $3580 per month to F as spousal support from the Conservatorship estate. Petitioners argue that support was set based on F’s estimated cost of living in Orange County, including cost of renting a home comparable to the Carnation Drive property, and that “it was intended that the Objector would either pay rent or vacate the Carnation Drive property which is the asset of the Survivor’s Trust.” (See Paragraph 6 of Petition). Fair Rental Market value of the property is $2450 per month, but the co-trustees have agreed to a lower rent of $2000 “to avoid the expense of finding another renter and the issue of collecting rent.” (See paragraph 8 of petition). The prayer for relief asks that the Court order rent deducted from spousal support and paid to the Survivor Trust from the Conservatorship account. The trustees ask, alternatively, that spousal support be adjusted downward “due to free rent and free use of the residence”, in the related conservatorship matter. The problem with this is that is seeks to modify the support stated in the SA based on facts presumably known by the parties at the time they entered into the SA, which contains a clear integration cause. These facts are not recited in the SA.
The only mention of rent in the SA is as to PB (6a). Otherwise, the SA is silent as to rent, if any, to be paid by F, or to be used as an offset as to the negotiated amount of support. The SA is also silent re use of the property. It was known at the time, presumably, that F was living in the property and not paying rent. Disputes over the interpretation of the SA are to be heard by Judge G (paragraph 16).
The objections
The objections filed June 4, 2012 describe F as “the surviving spouse of Robert M Harrod” and “a pretermitted spouse.” (Paragraph 1 of Objections). Objector argues that this court is precluded from hearing the matter because of the settlement agreement reached by the parties and filed with the court. The court disagrees and overrules this objection.
Objection 2 states that F is a pretermitted spouse who retains the right to reside rent free. There is no evidence Bob has died, so F is not a pretermitted spouse. However, the trust does provide that bob, as surviving settler, shall have the right to occupy the family residence free of rent. Harrod Family Trust (“HFT”
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section 7.15 (a). While it is true that he is missing, Bob is still the surviving settler of the Trust and is entitled to live in the house rent free. F argues that as Bob’s lawful spouse, she is owed an obligation of support under Family Code section 4301, and entitled to live in the house rent free. While the couple only lived together a month before Robert went missing, they are still married. Until proven or presumed dead, Bob is presumed to be alive, and legally married to F.
Objection 3 states that Bob intended his wife to live rent free. The language of the HFT clearly shows an intent that the surviving spouse be provided with a residence. Bob is the surviving spouse as to his first wife Georgia, the other settler (and mother of the petitioners). While F is not a “surviving spouse” as to the HFT , or as to Bob ( since Bob has not been declared dead) it stretches the imagination to argue that Bob would intend F to pay rent while he is alive, albeit missing.
The Reply to Objections filed 7/13/12 states that the spousal support was agreed upon “without the Petitioners having knowledge of the full extent of the Estate, rather than that the assets of the HFT…..would be income producing.” They say objector’s right to live in the residence and right to live there rent free was never addressed. They say the support was “based upon Objector’s proposed needs based on a standard of living in Orange County” and that F’s standard of living in Missouri set her needs at less than $1000 per month, which were being met through her SSI of $1140 per month. They state an “understanding” that F doesn’t reside in the residence many months of the year, and the home “sits unoccupied while it could and should be generating income in the form of rent for the HFT.” Exhibit 4 is a letter from Petitioners’/Trustees’ attorney demanding rent and it is dated a year after the SA. It states “As you can recall the spousal support to Mrs Harrod was based on her ability to live and rent in the Orange County area”.
Undisputed Facts
Twelve Undisputed Facts (“UF”
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listed in the joint pretrial statement were accepted by the Court and won’t be repeated in their entirety herein. The UF establish that F’s monthly income apart from the $3850 support from the Trust is $1260. Additional stipulations were stated orally on the record, as follows;
1: Gross monthly income of the conservatorship estate is $4811 per month
2: Monthly income of the conservatorship estate has gone down due to the suspension of Bob’s social security and pension payments. The Court is not informed as to when this decrease occurred, and in fact, it is not stated in the petition as one of the “changed circumstances” factors.
3: Monthly expenses of the conservatorship estate are $5400 per month (excluding attorney fees or conservator fees). Thus there is a monthly shortfall of $589.
4: F’s monthly expenses are $1875 per month.
5: This calendar year – 2012 – F lived outside California for a period of 3 months due to the birth of a granddaughter and the prolonged illness of her sister.
6: F’s family resides in Missouri.
Petitioners argue that they have an obligation to make the property income producing. F, by the same token, has the right to live in the home of her husband, who has mysteriously disappeared. There is no evidence that he deliberately abandoned his wife. Probate Code section 2420 requires the conservator of an estate to apply income of the estate to the support of the conservatee and any persons the conservatee is liable to support. F’s monthly expenses are $1875 and her income is $1260 plus the amount received pursuant to the SA, $3580. Presumably, this was taken into account when the support was agreed in the SA. Now petitioners seek to, in effect, reduce that support by an offset for rent. They have not met their burden of proof.
Copy of minute order mailed to:
Attorney IS
Attorney ACG
Attorney EA
Attorney JL