Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Horgan v. Cosden

Florida Court of Appeals, Second District

May 25, 2018

JOSEPH J. HORGAN, as Successor Cotrustee of The Yvonne S. Cosden Revocable Trust Dated 7/29/93, Appellant,
v.
CHRISTOPHER E. COSDEN, Individually and as Successor Cotrustee of The Yvonne S. Cosden Revocable Trust, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Sarasota County; Charles E. Williams, Chief Judge.

          Y. Drake Buckman and Allie R. Buckman of Buckman & Buckman, P.A., Sarasota, for Appellant.

          Susan J. Silverman, Sarasota, for Appellee.

          SILBERMAN, Judge.

         Joseph 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.

         Yvonne 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 friend.

         The 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."

         In 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.

         In 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 Cosden's death.

         The 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).

         Section 736.04113 entitled "Judicial modification of irrevocable trust when modification is not inconsistent with settlor's purpose, " provides in pertinent part as follows:

(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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.