April 24, 2014

Colorado Court of Appeals: Decedent’s Son’s Interest in Liquidating Trust Could Be Garnished Without Obtaining Judgment in Separate Action

The Colorado Court of Appeals issued its opinion in In re Estate of Beren: Beren v. Beren on Thursday, December 5, 2013.

Probate—Contribution/Garnishment—Spendthrift Provision—Appellate Attorney Fees.

This appeal involved the estate of Sheldon Beren, who died testate in 1996 and whose estate has been the subject of previous litigation (Beren I). This appeal involved defendant David Beren, who is one of decedent’s sons; Robert Goodyear, Jr., the estate’s personal representative in his capacity as liquidating trustee,; and the decedent’s surviving spouse, Miriam Beren (garnishor).

On September 2, 2010, the probate court approved Goodyear’s petition for final settlement and distribution (Final Distribution Plan), which called for the creation of liquidating trusts, including the Beren Estate Residuary Liquidating Trust Agreement (Liquidating Trust), because of Goodyear’s concern over a contingent income tax liability of the estate. Over defendant’s objections to the creation of the trusts, the probate court ordered Goodyear to distribute the estate assets as outlined in the Final Distribution Plan.

On appeal, defendant argued that garnishor could not garnish his interest in the Liquidating Trust to collect the contribution amounts that he owed her until she obtained a judgment establishing his liability in a separate contribution action. The Court of Appeals found that because the September 2 order fixed the contribution liability, garnishor was not required to obtain a separate judgment before she could garnish his account.

CRS § 15-11-205(4) provides for determination by the probate court of the elective-share and empowers it to “order its payment from the assets of the augmented estate or by contribution.” Under this authority, the probate court, in its September 2, 2010 order, had shown a 1997 distribution of $1 million to defendant subject to contribution of $459,546.51 for funding garnishor’s elective share. Defendant argued that this order was not an executable judgment and that under § 15-11-205(5), garnishor was required to bring a separate contribution action and obtain a judgment on which she could execute, before serving a writ of garnishment. The Court of Appeals found this section did not require a separate action but addressed only whether an order or judgment on contribution liability may be enforced in other Colorado state courts or other jurisdictions.

Alternatively, defendant argued that his bequest should not have been subject to contribution because the 1997 stipulation did not reserve to garnishor any right to seek contribution. This argument was foreclosed by Beren I. The division there declined to address this issue and he was precluded from raising it again.

Garnishor sought a portion of her appellate attorney fees under CRS § 13-17-102 because defendant’s assertion that the 1997 stipulation precluded contribution liability lacked substantial justification. The Court agreed and remanded the case for a determination of the amount.

Defendant argued that because the Liquidating Trust Agreement contained a spendthrift provision, the probate court erred by allowing his interest in the Liquidating Trust to be garnished before any distribution to him. The Court held that this provision did not protect funds that Goodyear was required to distribute under the Agreement, although the distribution had not yet occurred.

The Agreement provided that as soon as all applicable statutes of limitations on the contingent tax liabilities had expired, the Liquidating Trustee must distribute the remaining balance of each beneficiary’s separate share. The statute of limitations ran, and Goodyear told the beneficiaries he planned to make a distribution to each of them. Before he did so, garnishor served a writ of garnishment on Goodyear requiring him to pay her any personal property belonging to defendant up to the amount of his contribution liability from the September 2 order, plus interest. Defendant filed a claim of exemption relying on the spendthrift provision in the Agreement.

The probate court found that the spendthrift provision was invalid, or, even if the provision was valid, the trust funds could be garnished once Goodyear exercised his discretion to make a distribution. On appeal, the Court noted that funds under the discretionary control of a trustee subject to a spendthrift provision cannot be garnished. Once distributed, such funds are within the reach of creditors. The Court ruled that once the trust funds had become subject to mandatory distribution, they could be garnished. The order was affirmed and the case was remanded for further proceedings.

Summary and full case available here.

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