Filed 2/26/18 Winter v. Winter CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



KIMBERLY WINTER, as Cotrustee, etc.,

Plaintiff and Respondent,

v.

JAMES WINTER, as Cotrustee, etc.,

Defendant and Appellant.
D070847, D072017



(Super. Ct. No. 37-2013-00080299-
PR-TR-CTL)


APPEALS from orders of the Superior Court of San Diego County, Jeffrey S. Bostwick, Judge. Affirmed in part; reversed in part.
Law Office of John Derrick and John Derrick for Defendant and Appellant.
Beamer, Lauth, Steinley & Bond, Stephen A. Bond and Phillip A. Bond for Plaintiff and Respondent.
James Winter appeals from orders removing him as a cotrustee of his parents' family trust, finding it was in his mother's best interest to move into the family home with a restriction that she only use the first floor of the residence, and awarding his sister, Kimberly Winter, attorney fees. On appeal, James contends the probate court: (1) abused its discretion in removing him as a cotrustee; (2) erred in restricting his mother's use of the family home to the first floor; and (3) abused its discretion in awarding Kimberly attorney fees and costs because her actions did not benefit the trust. We reverse the trial court's order awarding attorney fees and costs to Kimberly. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Augustus and Marion Winter were husband and wife. They had two children, James and Kimberly. Augustus and Marion established the Winter Family Trust and acted as its original trustees. They nominated James and Kimberly to serve as successor cotrustees in the event Augustus and Marion were both unable to act as trustees.
In 1991, Marion was seriously injured in an automobile accident caused by a drunk driver in Texas. The accident left Marion incapacitated. After the accident, a conservatorship was established for her person and estate. James is the current conservator.
As a result of litigation arising from the automobile accident, Marion and her family received a monetary settlement of approximately $10,050,000. After expenses and fees, the remaining settlement funds were distributed as follows: (1) Augustus and Marion, jointly, received $2 million; (2) Kimberly and James each received $500,000; (3) approximately $5.25 million went into a trust to provide for care and support of Marion (142 Trust); and (4) $1 million was split between two trusts with Marion as the primary beneficiary (Children's Trusts). The funds in the Children's Trusts were to be used for Marion's care if the 142 Trust was depleted. After Marion's death, funds remaining in the Children's Trusts would be distributed to James and Kimberly. Bank of America was the trustee of the 142 Trust, and Frost National Bank was the trustee of the Children's Trusts.
Marion required 24-hour care and her expenses were approximately $19,000 per month. Marion had an average annual income from social security, retirement benefits, interest, and dividends of approximately $25,000. The deficit between Marion's income and her expenses was made up by distributions from the 142 Trust to the conservatorship.
Augustus died in August 2010. As a result of his death and Marion's incapacity, James and Kimberly became cotrustees of the Winter Family Trust. The only asset of the Winter Family Trust was Augustus and Marion's former residence on Cliffridge Lane in La Jolla, California (Cliffridge House). Augustus lived in the Cliffridge House until his death, but Marion had not resided there since 2002. Instead, at the request of Marion's conservator at the time, the 142 Trust had purchased a condominium in La Jolla for Marion to live.
Marion's conservatorship held a note secured by a deed of trust on the Cliffridge House. The note was the result of debts Augustus had incurred improving the property, which had led to foreclosure proceedings by a creditor holding a lien. In order to prevent foreclosure, the conservatorship lent money to the Winter Family Trust to pay off the debt. The note was not paid off before Augustus's death and, at the time of the proceedings in this case, was worth approximately $750,000. However, Marion was the sole beneficiary of both the Winter Family Trust and her conservatorship. Thus, the debt was between two funds that existed for her benefit.
By the fall of 2013, the funds in the 142 Trust were almost depleted. Thus, Bank of America, as trustee, petitioned a Texas court to terminate the trust and distribute its remaining assets to Marion's conservatorship. In February 2014, the Texas court granted the petition and ordered that the 142 Trust's assets, including the condominium, be distributed to James, as conservator.
Approximately two months before the Texas court had terminated the 142 Trust, Kimberly filed a petition in California seeking removal of James as a cotrustee of the Winter Family Trust, appointment of a professional trustee, and authorization to sell the Cliffridge House. Kimberly offered her resignation as a cotrustee conditioned on removal of James as a cotrustee. Kimberly informed the court that she and James disagreed about what should be done with the Cliffridge House. Kimberly wanted to sell the house whereas James wanted to renovate it and move Marion into it from her condominium.
James opposed Kimberly's petition, arguing it was in Marion's best interests to move to the Cliffridge House. James also argued the terms of the Winter Family Trust required the trustees to permit Marion to live in the Cliffridge House. Specifically, the Winter Family Trust provided: "The Trustee shall allow the Survivor to occupy and use until his or her death, the [Cliffridge House], or any interest therein, used by either or both Trustors as a principal residence at the time of the death of the first Trustor to die."
James also petitioned the court to remove Kimberly as a cotrustee of the Winter Family Trust. James argued Kimberly breached her fiduciary duties to the trust by seeking to sell the Cliffridge House because the Winter Family Trust provided for Marion to occupy and use the house until her death. In a related conservatorship proceeding, James petitioned for authority to use conservatorship funds to renovate the Cliffridge House and have it become Marion's residence.
James and Kimberly submitted declarations to the probate court concerning their petitions to remove each other as cotrustees of the Winter Family Trust. Kimberly detailed how she and James had a hostile and dysfunctional relationship that impaired their ability to carry out their fiduciary duties. Kimberly stated she sought James's cooperation in developing a plan to sell or rent the Cliffridge House because the property had not been occupied since 2010, it had two liens on it for unpaid property taxes, it was in need of significant repairs and maintenance, the Winter Family Trust did not have funds available to refurbish the property, and it was improper for the cotrustees to do nothing with it. According to Kimberly, James had not taken any action to have Marion move into the Cliffridge House until Kimberly filed her petition to have the house sold and had not taken action to generate income from the Cliffridge House for Marion's benefit.
In his declaration, James detailed his efforts to ensure Marion received the best care and quality of life possible. James had informed Kimberly that it was in Marion's best interest to renovate the Cliffridge House to accommodate her needs, including completing an elevator project that Augustus had started. According to James, Kimberly did not want to renovate the Cliffridge House because specialized modifications to accommodate Marion's needs could negatively impact the resale value of the home, and Kimberly did not support any course of action that involved using funds from the Children's Trusts when there were other assets that could be sold and used first for Marion's care.
James explained that Kimberly attempted to prevent Bank of America from transferring the 142 Trust's remaining assets to the conservatorship. She also tried to prevent Frost Bank from making any distributions from the Children's Trusts to the conservatorship. Shortly after a Texas court ordered the 142 Trust's assets transferred to Marion's conservatorship, Frost Bank started making distributions from the Children's Trusts to the conservatorship.
James estimated the fair market value of the Cliffridge House increased from $1.5 million in December 2013 to approximately $2.5 million in December 2015. He also stated the Cliffridge House was not sitting idle because Marion visited it more than once per week. Marion would play the piano in the house, read books from the home library, and enjoyed watching children from a nearby elementary school play outside.
The court held an evidentiary hearing on Kimberly's and James's petitions. During the hearing, the court heard testimony from Susan Valoff, a licensed clinical social worker the court had appointed to complete an assessment of Marion. Valoff recommended that Marion remain in her condominium instead of moving to the Cliffridge House. Valoff concluded the condominium was a safer living environment for Marion because it was a single level, a caregiver could be closer to Marion at all times in a smaller space, and it would be easier to take Marion out in a wheelchair in the case of an emergency. In contrast, Valoff expressed concerns about the safety of the Cliffridge House for Marion. She noted that James wanted Marion to use the master bedroom on the second floor of the Cliffridge House. Valoff thought this would be problematic because evacuation would be difficult if there was a fire and the elevator was not working. Further, Valoff stated an issue with Marion using the second floor was that it would increase the distance between her and her caregiver if the caregiver was on the first floor of the home. Lastly, Valoff was concerned that mildew on the outside of the Cliffridge House could pose health problems for Marion due to poor air quality.
Marion's physician, Dr. Walter Strauser, stated Marion had severe dementia, a significant speech impediment due to her brain injury, and was not able to understand the factors involved in making a determination about the best place for her to live. Dr. Strauser disagreed with Valoff's assessment. In his opinion, the Cliffridge House offered Marion more potential for stimulation and pleasurable experiences. Dr. Strauser thought the Cliffridge House could improve the quality of Marion's life, but he recognized that Marion had fared well in her condominium for at least 10 years.
Marion's geriatric care manager, Ann Butterfield, testified the Cliffridge House would provide more stimulation for Marion than her current condominium because it had family memorabilia, a piano Marion enjoyed, and more activity that Marion could watch out the window. Butterfield did not have any concerns with Marion living at the Cliffridge House and explained that Marion's caregivers were trained to evacuate an elderly person in cases of emergencies.
After hearing the evidence, the court ordered: (1) Marion should move to the Cliffridge House with a restriction that she only use the first floor; (2) the condominium should be sold as soon as possible; and (3) James was removed as cotrustee of the Winter Family Trust. The court also accepted Kimberly's resignation as a cotrustee. In regard to removing James as a cotrustee, the court explained that there was a clear conflict between James and Kimberly, they could not work together, and their strained relationship created a stalemate concerning Marion's residence. Further, the court stated it was not impressed by James's management of the Cliffridge House and he had breached his fiduciary duties as a trustee by not maintaining the house as a productive asset.
Later, the court amplified its ruling to explain that no evidence was presented justifying the trustees' inaction concerning Marion's residence after Augustus's death. The court stated that the Cliffridge House had not been occupied or generated income for the trust. Instead, the house had become a liability to the estate because it had mold that needed to be removed and the trust estate owed past due property taxes on the house. In the court's opinion, with cooperation, James and Kimberly could have resolved the issue of Marion's residence, sold or rented the property Marion was not using, and used the real property assets to provide for Marion and economically benefit the trust. The court concluded the parties' hostility and lack of cooperation adversely affected the trust estate and warranted their removal as cotrustees.
DISCUSSION
I
REQUEST FOR JUDICIAL NOTICE
On May 19, 2017, we granted James's unopposed motion for judicial notice of documents from a parallel case concerning Marion's conservatorship. In July 2017, Kimberly requested that we take judicial notice of additional records in the conservatorship proceeding. We issued an order stating we would consider Kimberly's motion concurrently with the appeal. Because the documents are relevant to the issues in this appeal and consist of records of the trial court, we grant Kimberly's request and take judicial notice of them. (Evid. Code, §§ 459, 452, subd. (d).)
II
REMOVAL OF TRUSTEES
James challenges the court's order removing him as a cotrustee of the Winter Family Trust. He sets forth numerous points as to why the court should not have removed him as trustee, including contesting the trial court's stated reasons for its order. We address the trial court's stated reasons and, as we shall explain, conclude it acted within its discretion in removing James as a trustee of the Winter Family Trust because: (1) he breached his duties to preserve and protect the trust property; and (2) hostility and lack of cooperation between the cotrustees hampered the administration of the trust. Because these were sufficient grounds to remove James as a trustee, we need not address his remaining points challenging his removal.
A. Generally Applicable Legal Principles
A probate court has broad equitable powers to supervise the administration of a trust and an estate. The court has the responsibility "to protect the estate and ensure its assets are properly protected for the beneficiaries." (Estate of Ferber (1998) 66 Cal.App.4th 244, 253.) The court has the inherent equitable power to "take remedial action" and to " 'intervene to prevent or rectify abuses of a trustee's powers.' " (Schwartz v. Labow (2008) 164 Cal.App.4th 417, 427.)
As part of these broad powers, a probate court has the authority to remove a trustee based on a party's motion or on its own motion. (Prob. Code, § 15642, subd. (a).) The Legislature has identified several specific grounds to remove a trustee, including the trustee's breach of trust, failure to act, and hostility or lack of cooperation between cotrustees that impairs the administration of the trust. (§ 15642, subd. (b).) These grounds for removal are not exclusive; the court may remove the trustee for any other good cause, including to protect trust assets. (§ 15642, subd. (b)(9); Estate of Ferber, supra, 66 Cal.App.4th at p. 253.)
A trial court has broad discretion in determining whether to remove a trustee. (Estate of Gilmaker (1962) 57 Cal.2d 627, 633 (Gilmaker).) "But this is a power that the court should not lightly exercise, and whether or not such action should be taken . . . rests largely in the discretion of the trial court. Furthermore, the court will not ordinarily remove a Trustee appointed by the creator of the trust." (Estate of Bixby (1961) 55 Cal.2d 819, 826.) However, the court may remove the selected trustee if the best interests of the trust require such action. (See Estate of Wemyss (1975) 49 Cal.App.3d 53, 61.) Discretion is abused only when the trial court " 'exceeds the bounds of reason, all of the circumstances before it being considered.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 566; In re Marriage of Berland (1989) 215 Cal.App.3d 1257, 1261-1262.) In reviewing the factual determinations underlying the trial court's exercise of its discretion, we apply the substantial evidence test. (See Adoption of Matthew B. (1991) 232 Cal.App.3d 1239, 1254.)
B. Duties to Preserve and Make Trust Assets Productive
The trial court found James breached his duties to the trust by allowing the Cliffridge House to remain unproductive and become a liability to the estate because it had fallen into disrepair and was subject to past due property taxes. James argues the trial court abused its discretion in utilizing these conclusions to remove him as a trustee because the Cliffridge House had increased in value while he was trustee; he was not required to rent or sell the Cliffridge House because the Winter Family Trust required the trustees to make the house available for Marion's use; and mildew on the outside of the home did not warrant his removal as a trustee. We find James's arguments unavailing.
"A trustee's basic duties relate to management of the trust property. A trustee must preserve trust property and make it productive. (§§ 16006, 16007.) . . . In discharging these duties, a trustee must use 'reasonable care, skill, and caution' (§ 16040, subd. (a)) and 'invest and manage trust assets as a prudent investor would . . . .' (§ 16047, subd. (a).) In brief, the trustee's fundamental duty is to use due care to protect the trust property." (Moeller v. Superior Court (1997) 16 Cal.4th 1124, 1132; § 16040.) A trustee's violation of these duties constitutes a breach of trust. (§ 16400.)
Here, as cotrustees, James and Kimberly had a fundamental duty to protect the Cliffridge House, the Winter Family Trust's only asset. They had been responsible for managing the Cliffridge House since Augustus's death in 2010. During their tenure as cotrustees, they allowed the Cliffridge House to deteriorate to a condition that was not safe for Marion as the home had accumulated mildew, and permitted it to have a lien on it for unpaid property taxes. The unpaid property taxes plus interest were approximately $44,000, and the amount continued to accrue interest of approximately $100 per month. The cotrustees' inaction caused the Cliffridge House to become a liability. Regardless of whether the cotrustees' actions were willful, negligence is sufficient to constitute a breach of trust. (Estate of Gump (1991) 1 Cal.App.4th 582, 595.)
Even assuming the cotrustees were not required to rent or sell the Cliffridge House to produce income, they did have a duty to use due care and manage the asset as a prudent person under the circumstances and in furtherance of the purpose of the trust. (§ 16040, subd. (a) ["The trustee shall administer the trust with reasonable care, skill, and caution under the circumstances then prevailing that a prudent person acting in a like capacity would use."].) Under the circumstances of this case, that duty, at a minimum, included retaining the Cliffridge House in a safe and undeteriorated condition and managing the asset to address unpaid tax liabilities that were accruing significant interest. The trial court's factual determinations that the cotrustees had not done these things were supported by substantial evidence.
Lastly, we reject James's argument that the trial court erred in finding the trust estate had "dwindled" and using that as a basis to remove him as a trustee because the Cliffridge House had actually increased in value. There is nothing in the record to indicate the cotrustees did anything that can be attributed to the real estate's increase in value. Rather, as we have explained, the cotrustees failed to properly maintain the home and allowed it to continue to incur substantial interest for unpaid taxes. Consequently, the trial court did not abuse its discretion in concluding the cotrustees breached their duties to the trust, warranting removal.
C. Hostility or Lack of Cooperation Between Cotrustees
James argues the trial court abused its discretion in using hostility and lack of cooperation between the cotrustees as a basis for removing him as a trustee because: (1) there was no actual "deadlock" between James and Kimberly regarding Marion's residence as Kimberly did not have the power to decide where Marion lived; and (2) even if Kimberly and James could not function effectively as cotrustees, the only reasonable decision was to remove Kimberly and allow James to continue on his own as the sole trustee. We reject James's arguments.
"Hostility, antagonism and inevitable future conflict can justify the removal of the trustee when those factors impair the proper administration of the trust." (Copley v. Copley (1981) 126 Cal.App.3d 248, 288; § 15642, subd. (b)(3).) "The purpose of removing a trustee is not to inflict a penalty for past action, but to preserve the trust assets. [Citation.] 'The question in each case is whether the circumstances are such that the continuance of the trustee in office would be detrimental to the trust.' " (Getty v. Getty (1988) 205 Cal.App.3d 134, 139-140.)
Here, Kimberly and James do not dispute that hostility existed between them, and the record is replete with evidence of that hostility and their lack of cooperation in deciding what to do with the Cliffridge House. James wanted to renovate the Cliffridge House to accommodate Marion's needs whereas Kimberly wanted to rent or sell it. The parties could not resolve this dispute. James contends the stalemate did not matter because only he had the authority to decide where Marion lived, and he had the last word on the sale of the Cliffridge House due to the terms of the note secured by a deed of trust the conservatorship held on the house.
Regardless of whether Kimberly had authority to determine Marion's residence or who had the last word on the sale of the Cliffridge House, the lack of cooperation between James and Kimberly impaired the administration of the trust. Their hostility and lack of cooperation resulted in the Winter Family Trust owning an asset that was a liability and continued to incur significant carrying costs while not being habitable for Marion. Further, James and Kimberly did not cooperate to maintain the house as it was falling into disrepair. Even if the cotrustees did not sell or rent the home, they could have cooperated to do something with it and at least maintain it in a habitable condition.
We find James's argument that the probate court should have only removed Kimberly as a cotrustee and allowed him to continue in that role unavailing. As we previously explained, James, along with Kimberly, had a duty to protect the Cliffridge House, the Winter Family Trust's only asset. Based on James's breach of that duty combined with his lack of cooperation and hostility with Kimberly, the probate court was well within its discretion in removing James as a cotrustee.
III
RESTRICTION ON USE OF THE CLIFFRIDGE HOUSE
James argues the probate court erred in restricting Marion's use of the Cliffridge House to the first floor. We reject James's argument.
The probate court "in its discretion may make any orders and take any other action necessary or proper" to resolve the issues before it. (§ 17206.) Where, as here, an order is challenged for insufficiency of evidence, we consider whether substantial evidence supports it. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1658.) We start with the presumption the record contains sufficient evidence to support every finding of fact in support of the order, and the appellant has the burden to overcome the presumption and show that no substantial evidence supports the order. (Foreman & Clark Corp., supra, at p. 881.)
Here, the trial court found the second floor of the Cliffridge House posed a safety concern for Marion in the event there was an emergency, such as a fire, because of evacuation issues. The court determined an elevator would not eliminate the risk. These findings were supported by substantial evidence. Valoff, the social worker who completed a court ordered assessment of Marion's living situation, expressed concerns about the safety of the Cliffridge House. Specifically, she stated that in the case of an emergency, evacuating Marion from the second floor would be difficult if the elevator was not working. Thus, Valoff determined Marion's condominium was a safer living environment. Valoff's testimony was sufficient evidence to support the probate court's order limiting Marion's use of the Cliffridge House to the first floor.
Lastly, we reject James's argument that the issue of whether Marion's use of the Cliffridge House should be restricted to the first floor was not properly before the probate court because Kimberly did not request it in her petition. Although Kimberly did not specifically request that the court place restrictions on Marion's use of the Cliffridge House, the parties addressed Marion's use of the second floor during the evidentiary hearing on their petitions. The court heard evidence on both sides of the issue. Valoff testified that the second floor of the residence posed safety risks whereas Butterfield, Marion's geriatric care manager, stated there were no safety concerns because Marion's caregivers were trained to evacuate elderly persons. Additionally, approximately 10 months before the evidentiary hearing, Valoff had issued a report identifying the safety concerns posed by Marion's use of the second floor. Accordingly, the issue was before the probate court, the parties had proper notice of it, and the trial court did not err in making its order. (See § 17206.)
IV
ATTORNEY FEES AND COSTS
After the probate court issued its order removing James as a cotrustee and finding it was in Marion's best interest to move to the Cliffridge House, Kimberly requested the court order payment of her attorney fees and costs in the amount of $106,880.52 from the trust. The probate court awarded her $88,000. On appeal, James argues the probate court's order should be reversed because Kimberly did not prevail on her position that Marion should continue to live in the condominium, and Kimberly's actions did not benefit the trust. We conclude the trial court abused its discretion in awarding Kimberly reimbursement of her attorney fees and costs from trust property.
"A trustee is entitled to the repayment out of the trust property for the following: [¶] (a) Expenditures that were properly incurred in the administration of the trust. [¶] (b) To the extent that they benefited the trust, expenditures that were not properly incurred in the administration of the trust." (§ 15684.) "A trustee is not entitled to attorney fees and expenses of litigation where it is determined that the trustee breached the trust," unless the trustee's actions resulted in a benefit to the trust. (Estate of Gump, supra, 1 Cal.App.4th at p. 605; Estate of Vokal (1953) 121 Cal.App.2d 252, 261 [a trustee is not entitled to recover expenses and fees incurred in litigation where the trustee caused the controversy and the litigation did not benefit the trust].)
We review the probate court's allowance of trustee expenses for abuse of discretion. (Estate of Gump, supra, 1 Cal.App.4th at p. 597.) " 'Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered.' " (Denham v. Superior Court, supra, 2 Cal.3d at p. 566.)
Here, Kimberly pursued litigation to remove James as a cotrustee of the Winter Family Trust and obtain authorization to sell the Cliffridge House. She argued that she and James were unable to cooperate in handling the house and were in "breach of the trust for failing to make the trust assets productive for Marion and for failing to properly diversify them." Kimberly informed the court that the house should be sold because, among other things, it was in disrepair and was subject to a lien for past due property taxes. Although the court determined Kimberly's petition broke the parties' stalemate as to what to do with the house, the court ultimately rejected Kimberly's position and ordered that Marion should move to the Cliffridge House after it was repaired to a condition that was safe and appropriate for her. The court found Kimberly's and James's actions had adversely affected the trust estate. Further, the court concluded that James should be removed as a trustee because he breached his duties to the trust by mismanaging the trust property and allowing it to go unoccupied and unproductive. The court did not specifically make the same finding as to Kimberly because it accepted her resignation as a cotrustee; however, the finding applies equally to her as she had the same duties as James.
Even though the probate court determined Kimberly's petition broke the stalemate between her and James concerning the Cliffridge House, Kimberly's actions did not meet the requirements for repayment of her attorney fees and costs out of trust property. Her litigation did not confer a benefit on the trust and arose out of her own breaches of duties to the trust. Kimberly's goal was to force a sale of the Cliffridge House. That did not happen. Although she did not have to prevail on her position to recover her expenses (Whittlesey v. Aiello (2002) 104 Cal.App.4th 1221, 1227), her actions must have benefited the trust and not have arisen from her own misconduct. Had Kimberly and James cooperated with each other, the litigation would have been unnecessary as they could have jointly decided the disposition of the house and Marion's residence.
Further, as we previously discussed, Kimberly, as a cotrustee, had a duty to protect the Winter Family Trust's asset, but she failed to do so and instead let the house incur significant carrying costs and sit idle in a poorly maintained and uninhabitable condition. She argued the condition and liabilities of the Cliffridge House supported her position that it should be sold. However, as a cotrustee, she was responsible for those issues and, as a result, breached her duties to the trust.
Under the circumstances of this case where Kimberly's actions contributed to the need for the litigation, she breached her duties to the trust, and did not confer a benefit to the trust, we conclude the trial court abused its discretion in awarding Kimberly reimbursement of her attorney fees and costs out of trust property.
DISPOSITION
The probate court's order removing James as a cotrustee of the Winter Family Trust and restricting Marion's use of the Cliffridge House to the first floor is affirmed. The probate court's order awarding Kimberly reimbursement of her attorney fees and costs from trust property is reversed. The parties shall bear their own costs on appeal.


HUFFMAN, Acting P. J.

WE CONCUR:



NARES, J.



GUERRERO, J.