In the Missouri Court of Appeals
Eastern District
DIVISION FOUR
PATRICIA C. BEREZO, ) No. ED109192
)
Appellant, ) Appeal from the Circuit Court of
) St. Louis County
vs. )
) Honorable Ellen S. Levy
LALO BEREZO, ET AL., )
)
Respondent. ) Filed: June 4, 2021
Introduction
Patricia Berezo (“Appellant”) appeals the trial court’s grant of summary judgment,
motion to dismiss to Lalo Berezo (“Respondent”), and denying Appellant access to funds held in
trust for her late husband, Michael Berezo (“Decedent”).
Appellant raises four points on appeal. In Point I, Appellant argues the trial court erred
granting Respondent summary judgment, concluding Decedent’s references to his “wife” in the
trust instrument did not entitle Appellant to the funds in the trust. In Point II, Appellant argues
the trial court erred dismissing one of her claims, concluding a proposed amendment to the trust
– which would have made Appellant a beneficiary – never took effect. In Point III, Appellant
argues the trial court erred granting Respondent summary judgment, concluding Appellant is not
entitled to access the trust funds as an omitted spouse. In Point IV, Appellant argues the trial
court erred by awarding attorneys’ fees to Respondent and denying Appellant’s motion for
attorneys’ fees.
We affirm.
Factual and Procedural Background
Decedent established the “Michael W. Berezo Revocable Trust” (“the Trust”) in 1996,
while he was married to his first wife, Alene. Decedent and Alene were married until Alene’s
death in June 2012. Decedent and Alene have an adult daughter, Alison. Alison is disabled and
unable to care for herself. Alison is a beneficiary of the Trust. Her care is also funded by a
separate, special needs trust and government assistance.
In August 2012, Decedent amended the Trust (“the Second Amendment”). The Second
Amendment stated, “Alene V. Haskell died on June 15, 2012,” established Decedent as the sole
trustee, and named Decedent’s brother Lalo – Respondent – as successor trustee.1 The amended
Trust nevertheless retained numerous references to Decedent’s “wife.”
Appellant and Decedent married on March 8, 2014. After marrying, Decedent,
Appellant, and their attorneys worked to update the Trust to include Appellant. Decedent died
unexpectedly on November 30, 2014 without amending the Trust.
From December 2014 to March 2015, attorney Michael Silver of the Husch Blackwell
law firm represented Appellant personally and Respondent as successor trustee of the Trust.
Appellant alleges Silver advised her she would be entitled to an elective share of Decedent’s
assets worth approximately $2.3 million, even if she was not included in the Trust. Appellant
also alleges Silver advised Appellant to take a $500,000 loan from the Trust to finance the
purchase of a new house. On March 4, 2015, Silver terminated Husch Blackwell’s
representation of Appellant but continued to represent Respondent in his capacity as trustee.
1
The August 2012 amendment was the Second Amendment to the Trust. The First Amendment was made in 2010.
2
Appellant retained new counsel and filed a declaratory judgment action on September 8,
2015, asking the court to find she was entitled to one half the value of Decedent’s estate,
including the assets in the Trust under section 474.010.2 Respondent argued section 474.010
entitled Appellant to one half the value of Decedent’s probate estate, but not the assets in the
Trust. In response, Appellant filed her first amended petition in January 2016, adding Silver and
Husch Blackwell as defendants. In December 2016, Appellant filed her second amended
petition, claiming (1) Appellant is a beneficiary of the Trust as Decedent’s wife; (2) the never-
executed Third Amendment to and Restatement of the Trust expressed Decedent’s intent and
was valid; (3) the Third Amendment to the Trust was valid and effective; (4) there was an oral
agreement between Appellant and Decedent for Appellant to be added to the Trust; (5) if the
Third Amendment to the Trust was not effective, Appellant was an omitted spouse entitled to a
share of the augmented estate; (6) for an accounting of the Trust assets; (7) for discovery of
assets and to establish a constructive trust; (8) promissory estoppel prevents Respondent from
arguing Appellant was not entitled to recover $2.3 million dollars from the Trust; (9) negligent
misrepresentation against Husch Blackwell and Michael Silver; and (10) breach of trust, breach
of fiduciary duty, and for disgorgement of fees against Husch Blackwell, Silver, and Respondent.
In June 2017, the trial court dismissed Appellant’s claims about the validity of the Third
Amendment to the Trust, her claimed oral agreement with Decedent, and her requests for an
accounting and constructive trust. In November 2017, the court granted summary judgment to
Respondent on Appellant’s claim she was the “wife” in the Trust, for promissory estoppel, and
for breach of trust against Respondent. The court also granted partial summary judgment to
Respondent on Appellant’s omitted spouse claim.
2
All statutory references are to RSMo (2015), unless otherwise indicated.
3
In January 2019, the trial court held a hearing on the parties’ requests for attorneys’ fees.
On March 4, 2020, the trial court denied Appellant’s request for fees and granted Respondent
$582,418.43 in fees. The trial court found Appellant’s “objective in this litigation has been to
pierce [Decedent’s] Trust to obtain a share of the assets held in the Trust in an amount far greater
[than] she was entitled to through the exercise of her statutory inheritance rights under applicable
probate law.” The court further found Appellant’s claim Respondent, Silver, and Husch
Blackwell conspired “to deprive [Appellant] of an inheritance right” was baseless. The trial
court concluded Appellant was “an omitted spouse, nothing more and nothing less . . . . entitled
to an intestate share of her deceased husband’s probate estate,” but not assets held outside the
probate estate, including assets in the Trust.
The trial court found Appellant’s conduct during the litigation was vexatious and justified
awarding fees to Respondent. Specifically, the court found Appellant pursued “multiple and
conflicting theories of recovery,” “propounded voluminous discovery . . . despite the court’s
findings regarding the lack of merit in [Appellant’s] claims,” and “sought reconsideration of
many of the court’s motion rulings and judgments, all of which has significantly increased the
cost of defending the action.” The court further found Appellant “changed arguments presented
in the original proceedings, mischaracterized the Court’s statements in those rulings and
judgments, and attempted to change or introduce new or different facts on reconsideration . . . .
without any concern for the expenses being incurred by [the Trust] or the interest of its innocent
beneficiary, [Alison].”
This appeal follows.3 Additional factual and procedural history will be provided below
as necessary to address Movant’s claims.
3
The only issues on appeal are Appellant’s claims (1) she is a beneficiary of the Trust as decedent’s wife and
Respondent is liable for breach of trust; (2) the never-executed Third Amendment to the Trust is valid and effective;
4
Standard of Review
1. Summary Judgment (Points I and III)
The standard of review on summary judgment is essentially de novo. ITT Commercial
Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).
When considering appeals from summary judgment, we review the record in the light most
favorable to the party against whom judgment was entered. Id. (citing Zafft v. Eli Lilly, 676
S.W.2d 241, 244 (Mo. banc 1984)). We accord the nonmoving party the benefit of all
reasonable inferences from the record. Id. at 376 (citing Martin v. City of Washington, 848
S.W.2d 487, 489 (Mo. banc 1993)). We will affirm summary judgment when there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law. Germania
Bank v. Thomas, 810 S.W.2d 102, 105 (Mo. App. 1991).
2. Motion to Dismiss (Point II)
We review the grant of a motion to dismiss de novo. Lang v. Goldsworthy, 470 S.W.3d
748, 750 (Mo. banc 2015). We will affirm if the dismissal can be sustained on any ground raised
in the motion to dismiss. Foster v. State, 352 S.W.3d 357, 359 (Mo. banc 2011).
Discussion
Point I: The Trial Court did not Err by Granting Summary Judgment Finding Appellant is not a
Beneficiary of the Trust and Lacks Standing to Pursue a Breach of Trust Claim Against
Respondent
Appellant’s declaratory judgment action asked the trial court to find Appellant was a
beneficiary of the Trust as “Grantor’s Wife.” In its November 22, 2017 order, the trial court
(3) Appellant qualifies to inherit from the trust as an omitted spouse; and (4) the trial court erred by awarding
attorneys’ fees to Respondent. The claims against Husch Blackwell and Michael Silver were severed and are being
litigated separately. The other counts against Respondent were resolved by the trial court in Respondent’s favor,
were not appealed, and are not before us.
5
granted summary judgment to Respondent, finding Appellant was not “Grantor’s wife” as a
matter of law. The trial court concluded Appellant was not entitled to inherit from the Trust.
In Point I, Appellant argues summary judgment was improper regarding her status as a
beneficiary of the Trust as “Grantor’s wife.” Appellant argues the trial court erred by finding the
Trust excluded her as a matter of law because the Trust is ambiguous in two respects: (1)
whether Decedent intended the Trust’s benefits for “Grantor’s wife” to (a) only apply to Alene or
(b) apply to whomever Decedent was married at his death and (2) whether the Trust’s definition
of “Grantor’s wife” must be interpreted to maximize the Trust’s tax savings. We will affirm
summary judgment if there is no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. Thomas, 810 S.W.2d at 105.
Appellant argued to the trial court she replaced Alene as “Grantor’s wife” in the Trust
when she married Decedent and was therefore a beneficiary. The trial court granted summary
judgment to Respondent, finding Appellant was not a beneficiary of the Trust and was not
entitled to pierce it. The court granted summary judgment because it found the meaning of
“Grantor’s wife” in the Trust was unambiguously limited to Decedent’s first wife, Alene, and did
not extend to Appellant as a matter of law. The trial court relied on the facts (1) Alene was alive
when the Trust and its first amendment was executed, (2) the Trust referred to Alene by name as
the “Grantor’s wife” beneficiary, and (3) there were provisions in the Trust that contemplated
Alene predeceasing Decedent. The court concluded Appellant’s broader reading of “Grantor’s
wife” was incorrect because it:
disregard[ed] all references to Alene . . ., disregard[ed] all of the directions therein
for administration and distribution in the event Alene predeceased [Decedent];
and, [ascribed] to [Decedent] an intention in 2012 that is clearly not reflected in
6
the words he used solely for the purpose of fashioning new directions for
administration and distribution of the Trust to accommodate a subsequent event,
i.e. his marriage to [Appellant], that did not exist and was not even contemplated .
. . . Such an endeavor would require the court to rewrite the Trust.
A. References to “Wife” After Alene’s Death
Appellant first argues Respondent was not entitled to summary judgment because
Decedent amended the Trust after Alene’s death and did not delete all references to his wife.
Appellant notes the versions of the Trust preceding Alene’s death identified Alene by name as
Decedent’s wife yet argues the Trust did not “define the term ‘wife’ as a specific person or
otherwise contain language that [Decedent] intended to restrict ‘wife’ to mean ‘Alene.’”
Appellant argues the Second Amendment supports her interpretation because the Second
Amendment acknowledges Alene’s death, yet retains references to “wife” throughout the Trust.
Appellant notes the Second Amendment could have removed all references to “wife,” but did
not. Appellant reasons the Trust was intended to provide for Decedent’s widow if he remarried,
which she argues is supported by the draft Third Amendment he was editing before his death.
Appellant concludes the trial court incorrectly found the Trust’s references to Decedent’s
wife unambiguously referred to Alene only and excluded any subsequent spouses Decedent
might have. Appellant asks this Court to either (1) conclude the Trust is ambiguous and remand
for the trial court to consider extrinsic evidence or (2) conclude the Trust unambiguously
provides for Appellant as Decedent’s wife.
Respondent argues the trial court correctly found Decedent intended to limit the Trust’s
definition of “wife” to Alene. Respondent notes the Trust states: “[t]he Trustee shall hold and
administer the [Trust] . . . for the lifetime benefit of Grantor’s wife, ALENE V. HASKELL . . . .”
7
Respondent emphasizes the Trust refers to Alene by name and granted her only a lifetime
benefit, arguing these words indicate Decedent intended to narrowly define “wife” as Alene and
provide for her specifically until death. Respondent argues the trial court correctly concluded the
fact the Trust named Alene specifically as the primary beneficiary “obviated the need to amend
the entire First Amendment and Restatement to remove each and every reference to Alene by
name or by generic reference.”
We agree. “In determining the meaning of a trust provision, the paramount rule of
construction is that the settlor’s intent is controlling and such intention must be ascertained
primarily from the trust instrument as a whole.” Commerce Bank, N.A. v. Blasdel, 141 S.W.3d
434, 443 (Mo. App. W.D. 2004). “We endeavor to ascertain the settlor’s intent at the time of the
creation of the trust.” Id. (emphasis added). We must limit our review to “what the [testator]
actually says and not by what we might imagine the testator intended to say or would have said if
he had decided to further explain his intention.” Id. If “a remainder interest (whether vested or
contingent) is conditioned on survival, then the interest is completely lost if a beneficiary fails to
survive until the preceding interests are terminated and the time has come for the beneficiary to
possess and enjoy the property.” Alexander v. UMB Bank, NA, 497 S.W.3d 323, 328–29 (Mo.
App. W.D. 2016).
Appellant’s attempts to parse whether the Trust “defined” Alene as Decedent’s wife or
merely “identified” her are unpersuasive. Decedent devoted two sections of the Trust to
provisions for Alene and deleted them after her death. We will not rewrite the Trust’s words
under the guise of construction. Blasdel, 141 S.W.3d at 445. Alene’s life interest in the Trust
terminated at her death and was not transferable to Appellant. Alexander, 497 S.W.3d at 328-
8
29.4 We find no error in the trial court’s conclusion the Trust’s references to Decedent’s wife
unambiguously were limited to Alene and not to unknown, future spouses.
B. Marital Deduction
Appellant next argues the trial court’s reading of the Trust was inconsistent with
Decedent’s intent because “[Decedent] expressly directed that his overriding purpose in his Trust
documents was to qualify for the ‘marital deduction.’” Appellant argues Decedent’s intent to
qualify for the marital deduction could only be met if the Trust applied to Decedent’s wife at his
death. Appellant relies on a provision in the Trust which states:
It is the Grantor’s intent that the Marital Trusts and any distribution made to the
Marital Trusts shall fully qualify for the allowance of a marital deduction to the
Grantor’s estate for Estate Tax purposes. Therefore, all provisions of the Trust
Agreement, including those granting powers of management and control of trust
assets to the Trustee, shall be construed and administered so as to carry out this
intent, and any provision inconsistent with this intent shall be void.
Appellant argues Decedent’s intent to achieve the marital deduction should have been the
starting point of the trial court’s analysis in determining whether the Trust was ambiguous.
Appellant reasons Decedent wanted the Trust to receive the marital deduction after his death,
regardless of whether he was married to Alene or someone else. Appellant concludes the trial
court’s interpretation of the Trust prevented Decedent from achieving his tax objectives,
contravening his intent.
4
The trial court accurately noted Appellant’s position on this point was inconsistent throughout the litigation.
Appellant’s initial petition and first amended petition conceded she was omitted from the Trust. Further,
Appellant’s efforts to get Decedent to execute a third amendment to the Trust before his death would have been
unnecessary if the Trust already provided for her through its references to [Decedent]’s wife.
9
Respondent argues Appellant’s interpretation of the marital deduction provision
contradicts the intent of the Trust when read as a whole. Respondent argues tax objectives were
not Decedent’s primary concern, noting the Trust contemplated Alene predeceasing Decedent
and provided an alternative distribution plan for Alison to become the primary beneficiary.
Further, Article II, Section C of the Trust provides alternative instructions for distribution of the
Trust’s assets, depending on whether Alene predeceased Decedent. Specifically, Respondent
notes the Trust provided if Alene predeceased Decedent, the Marital Trust was to be left
unfunded. Respondent argues the trial court correctly determined Decedent understood his tax
objectives were subject to “the vicissitudes of life” and, taken as a whole, the Trust was not
intended to automatically substitute unknown future spouses into Alene’s position in the Trust if
she died and Decedent remarried.
As in section A, we agree with the trial court’s conclusion Appellant’s interpretation
would require us to rewrite the Trust by disregarding the Trust’s specific references to Alene, the
Trust’s provisions for distribution in the event Alene predeceased Decedent, and “ascrib[ing] to
[Decedent] an intention . . . to accommodate a subsequent event, i.e., his marriage to [Appellant],
that did not exist and was not even contemplated [in 2012].”
As we noted above, Alene’s rights under the Trust lapsed at her death and are not
transferable to another party. Alexander, 497 S.W.3d at 328-29. We ascertain Decedent’s intent
from the words he used, and do not attempt to achieve a more “equitable” distribution. Boone
Cty. Nat’l Bank v. Edson, 760 S.W.2d 108, 111 (Mo. banc 1988). “We endeavor to ascertain the
settlor’s intent at the time of the creation of the trust.” Blasdel, 141 S.W.3d at 443. The Trust’s
provisions for Decedent’s wife extinguished at Alene’s death. Decedent never executed an
amendment including Appellant in the Trust. On these facts, there is no genuine issue of
10
material fact and Respondent was entitled to judgment as a matter of law. Germania Bank, 810
S.W.2d at 105.
Accordingly, the trial court correctly dismissed Appellant’s breach of trust claim,
concluding Appellant lacked standing to bring a breach of trust claim against Respondent
because she was not a beneficiary of the Trust. Stabler v. Stabler, 326 S.W.3d 561, 565 (Mo.
App. E.D. 2010).
Point I is denied.
Point II: The Trial Court Properly Dismissed Appellant’s Claim the Third Amendment to the
Trust was Executed
Appellant’s petition for declaratory judgment asked the trial court to declare Decedent’s
Third Amendment to the Trust was valid and effective, making Appellant a beneficiary of the
Trust. The trial court dismissed Appellant’s claim because it was undisputed Decedent did not
formally execute the Amendment or substantially comply with the Trust’s requirement that
alterations or amendments could only be executed “by signing a written instrument which shall
be effective upon delivery to the trustee.” In reviewing a motion to dismiss, we review the
petition “in an almost academic manner, to determine if the facts alleged meet the elements of a
recognized cause of action . . . . If the motion to dismiss can be sustained on any ground alleged
in the motion, the trial court’s ruling will be affirmed.” Howard v. SSM St. Charles Clinic Med.
Group, Inc., 364 S.W.3d 242, 244 (Mo. App. E.D. 2012).
In Point II, Appellant claims Decedent intended to make her a beneficiary of the Trust
and argues the trial court erred by finding he did not substantially comply with the Trust’s
amendment requirements. Appellant reiterates Decedent and his attorneys were working on a
draft Third Amendment in the months before his death and argues this is proof of his intent to
include her as a beneficiary. Appellant further argues Decedent’s email correspondence with his
11
attorney substantially complied with section 456.6-602.35 and the Trust’s requirement he “sign[]
a written instrument, which shall be effective upon delivery to the Trustee.”
Respondent argues the trial court correctly dismissed Appellant’s claim the Third
Amendment was executed because Appellant failed to plead facts indicating Decedent signed
and delivered a “written instrument” expressing his intent. Respondent notes the trial court
found Appellant only pled facts indicating: (1) Decedent “told his attorney that he would be
amending the Trust due to his marriage” (emphasis in original); (2) Decedent “communicated
with friends and advisors that he had gotten married;” (3) in June 2014, Silver “provided a draft
of the Third Amendment” to Decedent; and (4) Decedent asked Silver to draft the Third
Amendment and Decedent reviewed the draft in his capacity as grantor-trustee. Respondent
argues the trial court correctly found the “requirement of a written instrument to amend a trust
was not a waivable requirement” and correctly found Appellant’s failure to plead facts indicating
such an instrument existed was fatal to her claim. Finally, Respondent argues the trial court
correctly found Decedent’s alleged statements of intent to amend the Trust were merely
precatory.
Where instructions in a trust instrument are clear and unambiguous, the intent of the
grantor when the trust was created governs and subsequent modifications are effective only in
the manner expressed in the trust instrument. Banks v. Central Trust and Inv. Co., 388 S.W.3d
173, 176 (Mo. App. E.D. 2012). The settlor can modify the trust only in the manner or under the
circumstances provided by the trust. Id. at 176-77. “The requirement that any amendment to or
revocation of the trust be effectuated through a written instrument executed by the settlor serves
5
Section 456.6-602.3(1) provides, “[t]he settlor may revoke or amend a revocable trust: (1) if the terms of the trust
provide a method of amendment or revocation, by substantially complying with any method provided in the terms of
the trust . . . .”
12
a very significant purpose. It protects the integrity of the trust, operating similarly to the Statute
of Frauds.” Estate of Meyer v. Presley, 469 S.W.3d 857, 863 (Mo. App. W.D. 2015).
Appellant’s claim Decedent substantially complied with the Trust modification provision
fails. The Court of Appeals for the Western District held substantial compliance is more limited
than Appellant suggests in Estate of Meyer: “[w]hile the requirement of delivery of the written
instrument . . . might arguably be waivable by the trustee under certain circumstances, a question
we need not and do not decide herein, the other requirements for revocation are most certainly
not waivable . . . .” 469 S.W.3d at 836 (internal citations omitted). The Trust permitted
modification “only by signing a written instrument, which shall be effective upon delivery to the
Trustee” (emphasis added). Appellant cites no authority indicating Decedent’s actions would
meet the substantial compliance requirements of section 456.6.-602.3. Dismissal was therefore
proper because the facts pled cannot support the cause of action. Howard, 364 S.W.3d at 244.
Point II is denied.
Point III: Appellant Cannot Invade the Trust as an Omitted Spouse
Appellant asked the trial court to declare Appellant qualifies as an omitted spouse entitled
to a share of the assets distributed in Decedent’s will and held by the Trust. Appellant further
asked the court to declare she is entitled to an intestate share of the Trust. Appellant argued her
status as an omitted spouse entitled her to also invade the Trust because it is part of Decedent’s
“augmented estate.” The trial court granted partial summary judgment to Respondent, finding
(1) Appellant is an omitted spouse entitled to take from Decedent’s probate estate but not his
augmented estate, including the Trust and (2) reserving calculation of the value of Appellant’s
share. 6 The trial court found Appellant was not entitled to assets in the Trust because the
augmented estate is only relevant to the calculation of a spousal elective share, not to an omitted
6
The trial court also denied Respondent’s motion to dismiss.
13
spouse’s intestate share. The trial court further found section 474.235 limits its reach to spouses
omitted from the decedent’s will and does not entitle omitted spouses to invade a trust. The
parties do not dispute Appellant is an omitted spouse entitled to inherit from Decedent’s probate
estate under section 474.235.7
In Point III, Appellant asserts the trial court erred by granting partial summary judgment
finding she was not entitled to inherit from Decedent’s augmented estate, including the Trust.
We will affirm summary judgment if there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Thomas, 810 S.W.2d at 105.
Appellant argues the trial court erred by finding her share as an omitted spouse did not
include the assets held in the Trust. Appellant asserts Decedent’s decision to hold nearly all his
assets in the Trust defeated the intent of section 474.235 and constituted a “transfer” in fraud of
marital rights. Appellant further argues Decedent’s estate plan contravened her marital rights
because his decision to place nearly all his assets in the Trust left few assets in the probate estate
for her to inherit as an omitted spouse. Appellant concedes in her brief there is “no Missouri
precedent on point” while urging this Court to hold Decedent’s failure to move his assets out of
the Trust after marrying Appellant was a “deemed transfer” as a matter of public policy,
reasoning similarly situated settlors may attempt to use trusts to “hide” assets from their
spouses.8
Respondent argues Appellant abandoned her claim she was entitled to a share of
Decedent’s augmented estate and now raises an unpreserved claim of fraud of marital rights. We
7
Section 474.235 provides: “If a testator fails to provide by will for his surviving spouse who married the testator
after the execution of the will, the omitted spouse shall receive the same share of the estate he would have received
if the decedent left no will, unless it appears from the will that the omission was intentional or that the testator
provided for the spouse by transfer outside the will . . . .”
8
Appellant does not argue Decedent was trying to hide assets from her. She maintains her argument Decedent
intended to include her as a Trust beneficiary.
14
agree. Appellant argued to the trial court her status as an omitted spouse entitled her to also
invade the Trust because it is part of Decedent’s augmented estate. Appellant did not argue a
fraud of marital rights to the trial court. This Court “will not convict a trial court of error for an
issue not presented for its determination.” Dotson v. Dillard’s, Inc., 472 S.W.3d 599, 603 n.2
(Mo. App. W.D. 2015). Parties are “bound by the position [they] took in the trial court, and we
can review the case only upon those theories.” Sheedy v. Missouri Highways and Transp.
Comm’n, 180 S.W.3d 66, 70 (Mo. App. S.D. 2005).
Even if Appellant’s claim was preserved, it would fail. Fraud of marital rights was a
common law equitable claim – now codified in section 474.150 – available to surviving spouses
to defeat a conveyance or transfer of property made by a decedent spouse “without consideration
and with the intent and purpose to defeat the surviving spouse's marital rights in the decedent’s
property.” Carmack v. Carmack, 603 S.W.3d 900, 905-06 (Mo. App. W.D. 2020) (alterations
omitted). “The central inquiry was whether the decedent spouse conveyed or transferred
property ‘with the intent and purpose to defeat’ the surviving spouse’s marital rights.” Id. at 906.
“Our courts have consistently applied the statute to any asset in which the surviving spouse had a
marital right or interest that could have been recovered in the decedent spouse’s estate but for a
conveyance or transfer during the marriage.” Id. (emphasis added).
Appellant admits Decedent transferred his assets to the Trust years before the marriage
and pled no facts about Decedent’s intent. These facts are dispositive. Section 474.150, a fraud
of marital rights, is inapplicable to Appellant.
Point III is denied.
15
Point IV: The Trial Court did not Abuse its Discretion by Awarding Attorneys’ Fees
A. Standard of Review
Where an award of attorney’s fees is authorized by law, we review a trial court’s award
of fees for abuse of discretion. Berry v. Volkswagen Grp. of Am., Inc., 397 S.W.3d 425, 430
(Mo. banc 2013). An award of attorney’s fees is an abuse of discretion and requires reversal
only if it is “clearly against the logic of the circumstances then before the court and is so
arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful
consideration. City of Byrnes Mill v. Limesand, 599 S.W.3d 466, 477 (Mo. App. E.D. 2020).
B. Analysis
The trial court held a hearing on the parties’ respective motions for attorneys’ fees on
January 3-4, 2019. The court exercised its statutory authority to award fees to Respondent under
section 456.10-1004,9 finding Appellant “pursued multiple and conflicting theories of recovery,”
“mischaracterized the Court’s statements,” and “prosecuted this case with nothing short of
abandon. [She has] refused to admit defeat despite a plethora of decisions against [her]
position.” Further, the trial court found Appellant’s conduct during discovery caused
Respondent to “incur substantial costs, expenses, and fees which ultimately will be borne by the
Trust and the beneficiaries.” The trial court found Appellant’s “groundless and unsuccessful
litigation” was vexatious and justified awarding attorneys’ fees to Respondent.
In Point IV, Appellant argues the trial court erred by awarding attorneys’ fees to
Respondent and denying her motion for attorneys’ fees. Appellant first claims the trial court’s
fee award was an abuse of discretion because the court’s dismissal and summary judgment
9
Section 456.10-1004 provides: “In a judicial proceeding involving the administration of a trust, the court, as justice
and equity may require, may award costs and expenses, including reasonable attorney’s fees, to any party, to be paid
by another party or from the trust that is the subject of the controversy.”
16
rulings in Points I-III were incorrect. For the reasons discussed above, the trial court did not err
in its judgment on the merits.
Appellant further argues “justice and equity” did not require the court to award attorneys’
fees to Respondent because her conduct was not frivolous, egregious, or vexatious. She asserts
the trial court made six erroneous findings in deciding to award fees to Respondent that justify
reversal.
First, Appellant argues the facts show Appellant’s conduct has not been frivolous,
egregious, or vexatious. She claims her sole purpose was “to effect her late husband
[Decedent’s] express wishes that his financial assets would be used to care for [Decedent’s]
daughter Alison and his widow [Appellant], and that [Appellant] would care for Alison.”
Appellant passes blame onto the Husch Blackwell defendants, arguing their erroneous legal
advice and alleged conflicts of interest instigated the litigation and their “constant obstructionist
litigation tactics” escalated the time and expense required to resolve it.
We disagree. Appellant’s claims against the Husch Blackwell defendants were severed
from this case and are not before us. Appellant’s choices about how she wanted to litigate were
hers. As discussed in Points I-III, Decedent made no “express wishes” indicating Appellant
should have the right to inherit from the Trust, and Appellant’s claims to the contrary are
baseless.
Second, Appellant claims the trial court “ignore[ed]” her life-long friendship with
Decedent and Alene before Alene’s death and Respondent’s alleged admission Appellant is
entitled to take from the Trust. Respondent argues, and we agree, Appellant’s friendship with
Alene and Decedent is irrelevant to the decisions Appellant made in pursuing this litigation.
17
Further, nothing in the record supports Appellant’s claim Respondent ever conceded she was
entitled to take the $2.3 million share of the Trust she pursues here.
Third, Appellant claims the trial court erroneously found the litigation was baseless and
unexpected. Appellant cites Silver’s email correspondence with Respondent’s wife, in which
Silver states the estate would need to hire counsel if Appellant sued the estate. At most, the
documents Appellant cites suggest Respondent knew Appellant might sue in early 2015. The
documents do not establish Respondent conceded the lawsuit has merit.
Appellant’s fourth argument largely repeats her claims about Husch Blackwell’s role in
the expanded scope of litigation. Again, her claims against Husch Blackwell are not before us,
and they are irrelevant to whether Appellant’s conduct in pursuing her claims was vexatious.
Fifth, Appellant accuses the trial court of finding her purpose in suing the estate was
“primarily to inflict harm” on its innocent beneficiary, Alison. Appellant argues this conclusion
is incorrect because she had a good relationship with Alison and Alison’s care is largely funded
by sources other than the Trust. Respondent correctly points out Appellant’s claim
mischaracterizes the record and the trial court’s conclusions in the same way Appellant
mischaracterized the record before the trial court.
The trial court did not accuse Appellant of litigating with the purpose of inflicting harm
on Alison; the court said Appellant litigated “without any concern for the expenses being
incurred by or for the protection of the Trust or the interest of [Alison].” Appellant has admitted
her claim was an “overstatement” and apologized for it in briefing to the trial court on May 30,
2020. It is unclear why she now raises it again to argue the trial court abused its discretion in
awarding fees to Respondent. To the extent Appellant argues Alison was not the intended
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beneficiary of the Trust, we note the Trust provided if Alene predeceased Decedent, the Family
Trust was to be funded and the Marital Trust was not.
Sixth, Appellant argues the trial court erroneously found she mischaracterized the court’s
conclusions in its orders and argues “there are no examples of such misconduct.” Appellant’s
position is refuted by reviewing the previous paragraph, which shows how Appellant
mischaracterized the trial court’s findings in briefings to the trial court and to this Court on
appeal.
Finally, Appellant argues her victories on some motions before the trial court justify a
reduction of the fee award. Appellant notes she won discovery motions and a motion to recover
the statutory family allowance. Respondent notes section 456.10-1004 does not require fees to
be awarded strictly based upon which party won which motion; rather, fees may be awarded as
justice and equity require.
The trial court is an expert on attorney’s fees and has discretion to determine the fee
award. Klinkerfuss v. Cronin, 289 S.W.3d 607, 613-14 (Mo. App. E.D. 2009). We will only
reverse if “the award is clearly against the logic of the circumstances then before the court and is
so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful
consideration.” Limesand, 599 S.W.3d at 477. Nothing in the record suggests the trial court’s
fee award lacked careful consideration or shocked the sense of justice.
Point IV is denied.
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Conclusion
For the reasons stated above, the judgment is affirmed.
_______________________________
Philip M. Hess, Judge
Gary M. Gaertner, Jr., P.J. and
Michael E. Gardner, J. concur.
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