JOSEPH J. HORGAN, as Successor Cotrustee of The Yvonne S. Cosden Revocable Trust Dated 7/29/93, Appellant,
CHRISTOPHER E. COSDEN, Individually and as Successor Cotrustee of The Yvonne S. Cosden Revocable Trust, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Sarasota County; Charles E.
Williams, Chief Judge.
Drake Buckman and Allie R. Buckman of Buckman & Buckman,
P.A., Sarasota, for Appellant.
J. Silverman, Sarasota, for Appellee.
J. Horgan, as successor cotrustee, appeals the final judgment
that terminates The Yvonne S. Cosden Revocable Trust Dated
7/29/93. The trial court denied Horgan's motion for
summary judgment and granted the motion for summary judgment
filed by Christopher E. Cosden, individually and as successor
cotrustee, in Cosden's action to terminate his
mother's trust that had become irrevocable upon her
death. Because Horgan is entitled to summary judgment as a
matter of law, we reverse and remand for the trial court to
enter a final summary judgment in favor of Horgan that denies
termination of the trust.
S. Cosden (the Settlor) created a revocable trust in 1993. It
was amended and restated in 1998 and further amended and
restated on January 24, 2004, in the Second Amendment to and
Restatement of The Yvonne S. Cosden Revocable Trust Dated
7/29/93 (the Trust). Cosden and Horgan are the successor
cotrustees of the Trust. Cosden is the Settlor's only
child. Horgan was the Settlor's personal assistant and
Settlor died on May 27, 2010, rendering the Trust
irrevocable. Under the Trust, Horgan received a cash
distribution of $250, 000 at the time of the Settlor's
death. Although the Trust does not contain a specific
provision prohibiting its early termination, it provides that
the balance of the Trust is to be held in a lifetime trust
for Cosden's benefit. The net income generated from the
Trust principal is to be distributed to Cosden incrementally,
at least quarterly. The Settlor named three institutions of
higher education to share the principal which would be
distributed outright upon Cosden's death. The Settlor
included a spendthrift provision which provides that
"[t]he income and principal of any trust hereunder shall
be used only for the personal benefit of the designated
beneficiaries of the trust" and that each
beneficiary's interest "shall not be subject to any
form of pledge, assignment, sale, attachment, garnishment,
execution, or other form of transfer."
August of 2015, the income and remainder beneficiaries
entered into an agreement to terminate the Trust early and
distribute the trust funds according to a calculation of
present day value that Cosden prepared. The agreement stated
that the value of the Trust was approximately $3, 000, 000.
Cosden's calculation resulted in a distribution where he
would receive over $2, 000, 000 of the principal. Horgan did
not agree to an early termination of the Trust.
October of 2015, Cosden filed a complaint against Horgan as
successor cotrustee to terminate the Trust and direct the
distribution of assets in accordance with the
beneficiaries' agreement. Horgan responded, contending
that termination of the Trust at that time was against the
Settlor's wishes to provide for her son for the rest of
his life and to provide for principal distributions upon
parties filed competing motions for summary judgment, each
contending that no issues of material fact existed and that
each party was entitled to a judgment as a matter of law. The
trial court found that no issues of material fact existed and
granted summary judgment in favor of Cosden and directed
termination of the Trust, citing sections 736.04113 and
736.04115, Florida Statutes (2015).
736.04113 entitled "Judicial modification of irrevocable
trust when modification is not inconsistent with
settlor's purpose, " provides in pertinent part as
(1) Upon the application of a trustee of the trust or any
qualified beneficiary, a court at any time may modify the
terms of a trust that is not then revocable in the manner
provided in subsection (2), if:
(a) The purposes of the trust have been fulfilled or have
become illegal, impossible, wasteful, or ...