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IN THE MATTER OF MASHBURN MARITAL TRUSTS

IN THE MATTER OF THE MASHBURN MARITAL TRUSTS.
No. 2010 CA 1819.

Court of Appeals of Louisiana, First Circuit.

March 25, 2011.

L. Kevin Coleman, Mandeville, LA, Attorney for Appellants Joseph Patton Mashburn and Richard Anthony Mashburn, in Their Capacities as the Co-Trustees of the Mashburn Family Trust and Joseph Patton Mashburn and Donald J. Mashburn, in their Capacities as Managing Co-Trustees of the Jack and Sadie Pugh Mashburn Marital Trust.

Walter Antin, Jr., Hammond, LA, Attorney for Appellee Timothy R. Mashburn.

Pierre V. Miller, Metairie, LA, and Pierre V. Miller, II, New Orleans, LA, Attorneys for Appellee Helen Mashburn Penton.

Craig J. Robichaux, Mandeville, LA, Attorney for Appellee Rita Mashburn.

BEFORE: CARTER, C.J., AND GAIDRY AND WELCH, JJ.

NOT DESIGNATED FOR PUBLICATION

WELCH, J.

Joseph Patton ("Pat") Mashburn and Donald J. ("Don") Mashburn, in their capacities as the managing co-trustees of the Jack and Sadie Pugh Mashburn Marital Trust ("marital trust"), and Pat Mashburn and Richard A. Mashburn, in their capacities as the co-trustees of the Mashburn Family Trust ("family trust"), appeal a trial court judgment that ordered the beneficiaries of the marital trust and the beneficiaries of the family trust to be paid equal amounts of income for the year 2009; ordered the managing co-trustees of the marital trust and the co-trustees of the family trust to disburse to Timothy R. ("Tim") Mashburn and Helen Mashburn Penton, both of whom are beneficiaries of the marital trust and the family trust, the same sums of income that they distributed to the other beneficiaries of those trusts; and rendered judgment for those sums in favor of Tim Mashburn and Helen Mashburn Penton and against the respective co-trustees of each trust. In accordance with Uniform RulesóCourts of Appeal, Rule 2-16.2(A)(2), (4), (10), we affirm in part and reverse in part the judgment of the trial court.

The background facts of this case are more fully set forth in the recent opinions by this court, In Re Mashburn Marital Trusts, 2010-0278 (La. App. 1st Cir. 12/22/10), 52 So.3d 1136 ("Mashburn Marital Trust (V)"), and In Re Mashburn Marital Trusts, 2010-1104 (La. App. 1st Cir. 12/22/10), 52 So.3d 1127 ("Mashburn Marital Trust (VI)").[1] The present dispute involves a motion to compel the trustees to distribute the 2009 income of both the marital trust and the family trust, which was filed by Tim Mashburn on April 15, 2010 and filed by Helen Mashburn Penton on June 21, 2010. At the hearing, the co-trustees of the family trust and the managing co-trustees of the marital trust did not dispute that the 2009 income from the trusts had not been distributed to Tim Mashburn and Helen Mashburn Penton. Instead, they contended that Tim Mashburn and Helen Mashburn Penton were not entitled to the same sums of income as the other beneficiaries and to the distribution of income for 2009 for the same reasons they contended that Tim Mashburn and Helen Mashburn Penton were not entitled any trust income in 2008 or in 2007. Thus, the issues raised in this appeal with regard to the 2009 trust income are the same as the issues raised with regard to the 2008 trust income, which is fully addressed in the opinion in Mashburn Marital Trust (V) and with regard to the 2007 trust income, which is addressed in the opinion Mashburn Marital Trust (VI).

Accordingly, for the reasons set forth in Mashburn Marital Trust (V) and Mashburn Marital Trust (VI), we find that the managing co-trustees of the marital trust and the co-trustees of the family trust were not authorized to allocate litigation expenses to Helen Mashburn Penton or Tim Mashburn, and we find that the co-trustees of the family trust cannot use their unliquidated claim for damages against Tim Mashburn to offset the 2009 income Tim Mashburn was entitled to be distributed from his family trust. As such, the June 29, 2010 judgment of the trial court is affirmed insofar as it grants Helen Mashburn Penton's motion to compel the distribution of 2009 marital trust and family trust income to her, grants Tim Mashburn's motion to compel the distribution of 2009 family trust income to him, orders the managing co-trustees of the marital trust to distribute and pay to Helen Mashburn Penton the same sums of income paid to the other beneficiaries of the marital trust, and orders the co-trustees of the family trust to distribute and pay to Helen Mashburn Penton and Tim Mashburn the same sums of income paid to the other beneficiaries of the family trust.

Also for the reasons set forth in Mashburn Marital Trust (V) and Mashburn Marital Trust (VI), we find that the managing co-trustees of the marital trust were authorized to retain the 2009 income to be distributed to Tim Mashburn from his marital trust until the amount of the principal previously advanced to Tim Mashburn has been paid back. Therefore, the judgment of the trial court is reversed insofar as it grants Tim Mashburn's motion to compel the distribution of 2009 marital trust income to him and orders the managing co-trustees of the marital trust to distribute and pay to him the same sums of income paid to the other beneficiaries of the marital trust.

All costs of this appeal are assessed, in equal amounts, to: Timothy Mashburn; Joseph Patton Mashburn and Richard Anthony Mashburn, in their capacities as the co-trustees of the Mashburn Family Trust; and Joseph Patton Mashburn and Donald J. Mashburn, in their capacities as the managing co-trustees of the Jack and Sadie Pugh Mashburn Marital Trust.

AFFIRMED IN PART; REVERSED IN PART.

GAIDRY, J., concurring in part and dissenting in part.

I concur in part and dissent in part, for the reasons set forth in my concurring and dissenting opinion in the related case of In re Mashburn Marital Trusts, 10-0278 (La. App. 1st Cir. 12/22/10), ___ So.3d ___, (Mashburn Marital Trust V).

[1] For additional background facts, see In Re Mashburn Marital Trust, 2004-1678 (La. App. 1st Cir. 12/29/05), 924 So.2d 242, writ denied, 2006-1034 (La. 9/22/06), 937 So.2d 384 ("Mashburn Marital Trust (I)"); In Re Mashburn Marital Trusts, XXXX-XXXX, XXXX-XXXX, 2005-0887 (La. App. 1st Cir. 12/28/06), 951 So.2d 1136, writs denied, XXXX-XXXX, 2007-0446 (La. 4/20/07), 954 So.2d 164, 167 ("Mashburn Marital Trust (II)"); In Re Mashburn Marital Trusts, XXXX-XXXX, XXXX-XXXX, 2005-0887 (La. App. 1st Cir. 12/28/06), 947 So.2d 852 (unpublished opinion), writ denied, 2007-0403 (La. 4/20/07), 954 So.2d 164 ("Mashburn Marital Trust (III)"), and In Re Mashburn Marital Trusts, 2008-0450 (La. App. 1st Cir. 10/31/08), 994 So.2d 157 (unpublished opinion) ("Mashburn Marital Trust (IV)").