Downen v. Downen
Filed 6/20/06 Downen v. Downen CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
| DAVID W. DOWNEN, Plaintiff and Respondent, v. JOHN WAYNE DOWNEN, Individually and as Cotrustee, etc., et al., Defendants and Appellants. | G034419 (Super. Ct. No. A210513) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Marjorie L. Carter, Judge. Affirmed.
Eadington, Merhab & Eadington, Margot M. Nelson and David A. Sprowl for Defendants and Appellants.
Sawyer, Orr & Sawyer, Stephen D. Sawyer and Jason Robert Sawyer for Plaintiff and Respondent.
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Appellants contend the probate court erred in concluding certain assets belong to a family trust. We affirm.
I
FACTS
In their present appeal, appellants and spouses John Wayne Downen and Melva Downen[1] contend the probate court erred when it found an annuity, certain oil and gas rights and a piece of real property were assets of a family trust. In our prior unpublished opinion (Downen v. Downen, (Sept. 28, 2004, G031780)), we found sufficient evidence to support the probate court's finding a trust amendment was executed under circumstances of undue influence.
John Wayne and Melva filed an accounting of the trust with the probate court on January 17, 2003. They filed a first amended accounting of the trust on February 26, 2003. David W. Downen, respondent, filed objections to the accounting on March 24, 2003.
The parties agreed to limit the scope of the trial on the accountings to six issues: 1) Whether an annuity in the approximate amount of $60,000 is an asset of the trust; 2) Whether payments for care and maintenance of the settlor were proper and reasonable; 3) Whether certain oil and gas rights are an asset of the trust; 4) Whether a loan of $9,000 to David created an ownership interest in property located in Parker, Arizona; 5) Whether real property located in Lake Havasu, Arizona is trust property; 6) Whether John Wayne is entitled to attorney fees. The parties agreed to submit evidence on these issues by way of declarations and discovery materials.
On August 23, 2004, the probate court ruled: â€
