        IN THE MISSOURI COURT OF APPEALS
                WESTERN DISTRICT

THOMAS R. WINSTON,                          )
                                            )
              Appellant,                    )      WD76620
                                            )
vs.                                         )      Opinion filed: September 2, 2014
                                            )
DAVID WINSTON and                           )
MICHELLE WINSTON,                           )
                                            )
              Respondents.                  )


      APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
              THE HONORABLE KATHLEEN A. FORSYTH, JUDGE

                  Before Division Two: Victor C. Howard, Presiding Judge,
                       Alok Ahuja, Judge and Mark D. Pfeiffer, Judge


       Dr. Thomas R. Winston appeals the trial court‟s judgment that ordered, among other

things, that distributions be made to his children from certain trusts created by his father Dr.

Bernard Winston, that certain trusts be amended to remove his power to consent to all

distributions to his children, and that he pay $109,117.95 of his children‟s attorney fees. The

judgment is affirmed in part and reversed in part, and the case is remanded for proceedings in

accordance with this opinion.
                              Factual and Procedural Background

                                          The Trusts

       Dr. Bernard Winston created numerous trusts during his lifetime and made various

amendments thereto before his death in 1996.        An introduction to these trusts is vital to

understanding the issues in this case.

       In 1989, Dr. Bernard Winston created an irrevocable trust (“1989 Trust”) naming United

Missouri Bank of Kansas City (“UMB”) as the sole trustee.

       In 1990, Dr. Bernard Winston executed a trust agreement which created a generation

skipping residuary trust (“GSRT”) and a separate residuary trust (collectively “1990 Trusts”) and

named himself as the trustee and appointed UMB as the successor trustee. Subsequent to the

creation of the 1990 Trusts, Dr. Bernard Winston executed seven amendments thereto. Notably,

the fifth amendment stated that all prior amendments were superseded by its provisions and the

sixth amendment further confirmed that all amendments except the fifth amendment were

revoked. In the fifth amendment, Dr. Bernard Winston created the position of “Investment

Trustee”:

       Notwithstanding any other provision of this Trust Agreement, all actions and
       decisions of the Trustee relating to investment or reinvestment of the trust estate
       shall be exercised only by the Investment Trustee appointed under this Paragraph
       A-1. Any Trustee (including the corporate Trustee) who is not acting as the
       Investment Trustee under this Paragraph A-1 shall not have any responsibility for,
       nor the authority to join in any decision regarding, the making or retaining of
       investments of the trust estate. However, the Trustee (other than the Investment
       Trustee) shall take all reasonable actions to ensure that the Investment Trustee
       does not violate any provisions of this Trust Agreement regarding the permissible
       investments of the trust estate.

Dr. Bernard further named himself as the Investment Trustee of the 1990 Trusts and named Dr.

Thomas Winston as the successor Investment Trustee, providing that “if [Dr. Thomas Winston]




                                               2
is unable or unwilling to continue to act as such, the Trustee(s) then acting shall become the

Investment Trustee, and the provisions of this Paragraph A-1 shall no longer apply.”

         The 1990 Trusts give the trustee discretion to make distributions to Dr. Thomas Winston

or his descendants who are under age 18 as necessary for health, maintenance, and support, as

well as providing for $17,500 to each descendant at the ages of 16 and 19 for the purchase of a

new motor vehicle, $9,500 per year for living expenses for Dr. Thomas Winston‟s children who

are “qualifying students,” and amounts necessary to assist said children with the reasonable costs

associated with becoming a “qualifying student.”         The 1990 Trusts permitted Dr. Thomas

Winston to disapprove or veto distributions to his children during his lifetime, with provisions

following each potential distribution to the children mandating that no distributions be made to

them without his consent. The consent portion at the end of the income distribution provision

reads:

         Provided, however, during Thomas‟ life, no distribution shall be made to or for
         the benefit of a descendant of Thomas without the consent of Thomas (or by his
         legal representative during any period Thomas is under a legal disability).
         Notwithstanding the above provisions, Thomas‟ consent to any distribution to be
         made to one of his descendants may not be given more than sixty (60) days in
         advance, and shall be deemed valid only to the extent it is given freely and
         voluntarily.

The consent portion of the provision titled “Distributions from GSRT to or for the Benefit of

Thomas‟ Children” reads:

         Notwithstanding anything set forth in the preceding paragraph, during Thomas‟
         life, no distribution shall be made to a child of Thomas under this Subparagraph
         A(3) without the specific approval of Thomas (or without the approval of
         Thomas‟ legal representative during any period Thomas is under a legal
         disability). Notwithstanding the above provisions, Thomas‟ consent to any
         distribution to be made to one of his descendants may not be given more than
         sixty (60) days in advance, and shall be deemed valid only to the extent it is given
         freely and voluntarily.




                                                  3
       Additionally, there is a no-contest clause applicable to the 1990 Trusts, which reads:

       If any person who has been given an interest in a trust estate under this Trust
       Agreement institutes or joins in (except as a party defendant) any proceeding to
       contest the validity of this Trust Agreement or any of its provisions, all benefits
       provided for that person shall be revoked[.]

       In 1993, Dr. Bernard Winston executed another trust agreement that created another

irrevocable trust (“1993 Trust”). The 1993 Trust named UMB and Dr. Thomas Winston as co-

trustees, and was for the benefit of Dr. Thomas Winston and his children, having provisions for

distributions similar to those in the 1990 Trusts, but providing that such distributions from the

1990 Trusts would reduce the distributions from the 1993 Trust. The 1993 Trust also contained

similar consent provisions as the 1990 Trusts requiring Dr. Thomas Winston‟s consent for all

distributions to his children. The 1993 Trust did not contain a no-contest provision.

       Dr. Bernard Winston also created a number of trusts in which he placed numerous

paintings, naming Dr. Thomas Winston as the trustee and Dr. Thomas Winston‟s children as the

beneficiaries, the paintings to be held for them until they reach the age of thirty.

                                             Litigation

       Dr. Bernard Winston died in 1996, at which time Dr. Thomas Winston had two children

(“the twins”) who were six years old. UMB became the general trustee of the 1990 Trusts and

Dr. Thomas Winston became the investment trustee. In July of 2010, Dr. Thomas Winston filed

suit against UMB alleging breach of fiduciary duty and requesting an accounting and turnover of

property. The trial of these claims has not yet occurred and the issues involved are not a part of

this appeal.

       In August of 2010 UMB filed a third party petition against the twins requesting approval

of its resignation as corporate trustee, appointment of a successor corporate trustee, approval of a

final accounting of the trust, and a release of trustee. The twins filed an answer, as well as a

                                                  4
counter-petition and then an amended counter-petition against Dr. Thomas Winston, in which

they alleged breach of fiduciary duty and trust and violations of Uniform Transfers to Minor Act

and/or conversion, and requested removal of trustee and reformation of trust. With the first two

counts, the twins requested punitive damages and attorney‟s fees. The parties filed cross-

motions for summary judgment. Before any rulings on the motions, the twins dismissed with

prejudice their claim of violation of the Uniform Transfers to Minor Act and/or conversion. The

trial court ruled on the summary judgment motions orally, on the first day of trial, granting Dr.

Thomas Winston‟s motion for summary judgment as to any issues regarding the 1989 Trust and

denying all other summary judgment motions.

                                          The Judgment

       With regard to the painting trusts, the trial court held that Dr. Thomas Winston had not

breached his duty to safeguard the trust assets and that he did breach a duty to account to the

twins about the location of the paintings, but that they had not been damaged. The court denied

the twins‟ requests that Dr. Thomas Winston be removed as trustee, and that the painting trusts

be reformed. The court ordered that Dr. Thomas Winston have the paintings appraised to ensure

that they have sufficient insurance coverage, with the appraisal expense to be borne by the twins.

       With regard to the 1990 Trusts, the court concluded that the twins had not violated the

no-contest clause and that Dr. Thomas Winston had breached a fiduciary duty to the twins by

failing to consider their best interests in determining whether or not to consent to distributions.

The court declined to remove Dr. Thomas Winston as investment trustee, and it declined the

twins‟ request to split the trust into thirds. The court also noted that any relief requested and not

addressed was denied, which would include the twins‟ request to remove Dr. Winston‟s power of

appointment with regard to certain assets in the residuary trust. However, the court reformed the



                                                 5
1990 Trust Agreement to remove Dr. Thomas Winston‟s power to consent to distributions to the

twins. The court also ordered the corporate trustee to make specific distributions to the twins

from the 1990 Trusts for automobile and educational expenses.

        As to the 1993 Trust, the trial court removed Dr. Thomas Winston‟s consent power from

the trust agreement. The court held that Dr. Thomas Winston did not breach a fiduciary duty to

make distributions from the 1993 Trust, in that the 1990 Trusts contain sufficient funds. The

trial court denied the twins‟ request for punitive damages, stating that it could not “discount the

sincerity of Thomas‟s belief” that he had an absolute right to authorize or refuse distributions

from the trusts. However, the court held that Dr. Winston should have to pay $109,117.95 of the

twins‟ attorney‟s fees personally, based on the court‟s conclusion that he breached a fiduciary

duty.

                                           The Appeal

        Dr. Thomas Winston does not appeal the trial court‟s rulings regarding the 1989 Trust or

the Painting Trusts. All issues on appeal relate to the 1990 Trusts, the 1993 Trust, and the trial

court‟s award of attorney fees. Dr. Thomas Winston specifically challenges the trial court‟s

ruling that the corporate trustee make distributions from the 1990 Trusts to the twins for

automobile and educational expenses, the trial court‟s amendment of the 1990 Trust Agreement

and the 1993 Trust Agreement removing Dr. Thomas Winston‟s power to consent to all

distributions to his descendants, and the trial court‟s award of $109,117.95 in attorney fees to the

twins to be paid by Dr. Thomas Winston personally.

        These challenges are based on the four arguments raised in Dr. Thomas Winston‟s

appeal. First he argues the twins violated the no contest clause of the 1990 Trusts by filing their

counter petition in this case and requesting affirmative relief in the form of removing him as



                                                 6
trustee; removing his power of consent; either reformation, modification, or termination of the

trust; and severing of the trust into three separate ones for each beneficiary. Dr. Thomas

Winston also argues that the trial court erred in its legal conclusions that Dr. Thomas Winston‟s

consent powers obligated him to act in the twins‟ best interests. Dr. Thomas Winston contends

that the trial court erred in its legal conclusion that there was clear and convincing evidence in

the record that circumstances changed such that the trusts must be reformed to effectuate Dr.

Bernard Winston‟s intent. Finally, Dr. Thomas Winston asserts that the trial court‟s award of

attorney‟s fees to the twins was erroneous because it was based on their prevailing on most

issues, and the trial court erred in ruling in the twins‟ favor on those issues (no contest clause,

breach of fiduciary duty, modification); and argues in the alternative that if this Court finds the

trial court did not err in ruling in the twins‟ favor on the particular issues he challenges on

appeal, then the award of attorney‟s fees still must be remanded “for a recalculation of the

attorney‟s fees, with only fees for work done on successful claims chargeable to Dr. [Thomas]

Winston.”

                                      Standard of Review

       In a bench-tried case, the judgment of the trial court will be affirmed on appeal unless

there is no substantial evidence to support it, it is against the weight of the evidence, or it

erroneously declares or applies the law. Pearson v. Koster, 367 S.W.3d 36, 43 (Mo. banc 2012);

Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Claims that there is no substantial

evidence to support the judgment or that the judgment is against the weight of the evidence

necessarily involve review of the trial court‟s factual determinations. Pearson, 367 S.W.3d at

43. A reviewing court will overturn a trial court‟s judgment under these fact-based standards of

review only when the court has a firm belief that the judgment is wrong. Id. On the other hand,



                                                7
a claim that the judgment erroneously declares or applies the law involves review of the

propriety of the trial court‟s construction and application of the law. Id.

       An appellate court reviews questions of law de novo without deference to the trial court‟s

conclusions. Id. at 43-44. In reviewing questions of fact, the appellate court defers to the trial

court‟s assessment of the evidence if any facts relevant to an issue are contested. Id. at 44. This

is so because the trial court is in a better position not only to judge the credibility of witnesses

directly but also their sincerity and character and other trial intangibles that may not be

completely revealed by the record. Id. When evidence is contested, a trial court is free to

disbelieve any, all, or none of the evidence. Id. “„[T]he appellate court‟s role is not to re-

evaluate testimony through its own perspective.‟” Id. (quoting White v. Dir. of Revenue, 321

S.W.3d 298, 309 (Mo. banc 2010)).

       The construction of a legal document, such as a trust, based upon its language is reviewed

de novo. Kimberlin v. Dull, 218 S.W.3d 613, 615 (Mo. App. W.D. 2007). “Whether a fiduciary

duty exists is a question of law, while the breach of that duty is for the trier of fact to decide.”

Western Blue Print Co., LLC v. Roberts, 367 S.W.3d 7, 15 (Mo. banc 2012) (citing Scanwell

Freight Express STL, Inc. v. Chan, 162 S.W.3d 477, 481 (Mo. banc 2005)).

                                             Discussion

I. No-Contest Clause

       Dr. Thomas Winston‟s initial complaint is that the twins violated the no contest clause of

the 1990 Trusts by filing their counter petition in this case and requesting affirmative relief in the

form of removing him as trustee; removing his power of consent; either reformation,

modification, or termination of the trust; and severing of the trust into three separate ones for

each beneficiary. The twins argue in response that they fit the exception in the no contest clause



                                                  8
for those who join in a proceeding regarding the trusts as a party defendant, and their requests for

relief in their counter petition did not “contest the validity of [the 1990 Trusts] or any of [their]

provisions.”

       The no-contest clause applicable to the 1990 Trusts reads:

       If any person who has been given an interest in a trust estate under this Trust
       Agreement institutes or joins in (except as a party defendant) any proceeding to
       contest the validity of this Trust Agreement or any of its provisions, all benefits
       provided for that person shall be revoked[.]

The twins alleged breach of fiduciary duty, breach of trust, and unforeseen circumstances in their

counterpetition against Dr. Thomas Winston. They sought damages for Dr. Thomas Winston‟s

breach; to have Dr. Thomas Winston removed as trustee from the trusts, to be replaced with an

impartial trustee; to have Dr. Thomas Winston‟s discretionary power over distributions to the

twins removed; punitive damages; costs; attorney fees; reformation, modification, or termination

of the trusts and distribution of the trust property into thirds to be placed in three new trusts one

for each beneficiary, or in the alternative, that the court partition and or modify the trusts as it

saw fit given the unforeseen circumstances.

       Analysis of the meaning of a trust provision, such as the no contest provision of the 1990

Trusts, is governed by the primary rule of trust construction: the settlor‟s intent at the time of the

creation of the trust controls and is to 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). This

Court specified in Chaney v. Cooper, 954 S.W.2d 510, 519 (Mo. App. W.D. 1997):

       In reviewing the applicability of forfeiture provisions or “no-contest” clauses,
       courts are to consider the facts of the particular case, and those facts are to be
       considered and applied with “a careful regard for the phrasing or language of the
       no-contest or forfeiture clause; and, having in mind that forfeitures are not
       favored by the law. A no-contest or forfeiture provision is to be enforced where it
       is clear that the trustor (or testator) intended that the conduct in question should
       forfeit a beneficiary's interest under the indenture (or will).” Cox v. Fisher, 322

                                                  9
       S.W.2d 910, 915 (Mo.1959). See also Liggett v. Liggett, 341 Mo. 213, 108
       S.W.2d 129, 134 (1937).

       Here, neither the trust instrument nor the Missouri Uniform Trust Code, RSMo Chapter

456, defines “contest” nor “validity,” thus we employ the ordinary meaning of these terms in

analyzing Dr. Bernard Winston‟s intent in the no contest provision. Black‟s Law Dictionary

provides three definitions of “contest,” the second of which is applicable to its use in the 1990

Trusts: “To litigate or call into question; challenge <they want to contest the will>.” Black’s

Law Dictionary 361 (9th ed. 2009). “Valid,” the adjective form of “validity,” is defined as

“Legally sufficient; binding <a valid contract>.” Black’s Law Dictionary 1690 (9th ed. 2009).

So, to call into question the legal sufficiency of the 1990 Trusts would result in the revocation of

benefits to the contesting beneficiary.

       In the instant action, none of the allegations or relief sought in the twins‟ counterpetition

questioned the legal sufficiency of the trusts. Rather, it implicitly acknowledged that the trusts

were valid, but alleged circumstances that purportedly warranted some form of modification

because those circumstances were not foreseen by the settlor when the trust was validly created,

and were presently frustrating the settlor‟s intent as expressed in the trusts. Particularly, the

counterpetiton acknowledges the terms it asks the court to modify. It does not call them into

question, specifically stating: “Pursuant to the terms of the trusts, [Dr. Thomas Winston] must

approve distributions from any of the trusts to his children made during his lifetime.”

       In Chaney v. Cooper, the appeal stemmed from a dispute over the ownership of certain

assets, which originated from the condemnation proceeds of a family-owned farm in Missouri.

954 S.W.2d at 513. In that case, there were two wills, executed by a husband and wife, of whom

the husband passed first and the wife many years later. Id. The petitioners in the action had,

among other things, objected to the probate of the wife‟s will, based upon the contention that the

                                                10
husband‟s will, rather than the wife‟s, controlled the property. Id. at 519. This Court found that

the no-contest clause only pertained to the validity of the wife‟s will, not to petitioners‟

questioning of the construction of the husband‟s will as it pertained to the disposition of the

property.     Id.   This Court therefore concluded that the respondent‟s contention that the

petitioners‟ objection to the probate of the wife‟s will was an action that fell under the in

terrorem clause thus prohibiting the petitioners from taking under her will was without merit. Id.

at 518, 19.

       Similarly, the twins‟ counterpetition in the instant case alleges, essentially, that Dr.

Bernard Winston would never have foreseen the abuse of the twins allegedly inflicted by Dr.

Thomas Winston, and had he foreseen it, would not have granted Dr. Thomas Winston the veto

power as to distributions from the trusts. It concludes that because of the complete estrangement

between Dr. Thomas Winston and the twins, it is impossible to effectuate the settlor‟s intent in

the trusts. Simply stated, these allegations and the relief sought do not challenge the validity of

the trusts at all. Rather, the validity of the trusts is implicitly acknowledged, and the relief

sought is based on circumstances outside the trust instruments. As such the twins‟ action does

not trigger the no contest clause.

II. Power of Consent/Veto Power

       Dr. Thomas Winston specifies that he does not challenge the trial court‟s factual findings

that Dr. Thomas Winston was biased against the twins based on hostility between them and that

he failed to determine whether authorizing distributions would be in the twins‟ best interest. He

argues, rather, that the trial court erred in its legal conclusions based on these findings that (1)

Dr. Thomas Winston‟s consent powers obligated him to act in the twins‟ best interests, and (2)




                                                11
there was clear and convincing evidence in the record that circumstances changed such that the

trusts must be reformed to effectuate Dr. Bernard Winston‟s intent.

        The trial court made a factual finding that Dr. Bernard Winston gave Dr. Thomas

Winston the power to grant or withhold consent to distributions to the twins “with the

expectation that [Dr. Thomas Winston] would act in their best interests[,]” and that “[t]here

[was] no evidence that [Dr. Bernard Winston] intended that [Dr. Thomas Winston‟s] consent

power be used as an instrument of control or punishment.” The trial court made the legal

conclusion that “[t]he terms of the 1990 Trust Agreement with respect to the trustees‟ fiduciary

duties mirrors Missouri law and confirms that [Dr. Bernard Winston‟s] intent and the law are

consistent. Thus [Dr. Thomas Winston‟s] consent powers with respect to distributions to the

Twins are not absolute and are constrained by fiduciary principles.”

        The intention and meaning of the settlor of a trust is to be determined by what he said in

his trust, and not by attempting “to guess what he meant or what he might have done under

certain conditions if not expressed in his will.” See Blasdel, 141 S.W.3d at 443 (internal

quotations omitted) (noting that “Although this and many other cases cited herein concern wills,

Missouri courts generally use the same rules for construing both trusts and wills.). The intent of

the testator, or in this case, the settlor, must be analyzed based upon what the trust instrument

“actually says and not by what we might imagine the testator [(or settlor)] intended to say or

would have said if he had decided to further explain his intention.” Id.

        While it is not inappropriate to resort to outside evidence of surrounding
        circumstances to identify the beneficiaries, to explain their relationship to the
        testators, or to show the nature and extent of the testators' holdings, even when
        such explanatory material has been obtained, we must still look primarily to the
        language of the will.

Id. (internal citation omitted).



                                                12
       Furthermore, it is well established that

       absent any ambiguity in the terms of a legal instrument, the intent of its maker,
       including the intent of a testator or the settlor of a testamentary or inter vivos
       trust, is to be ascertained from the four corners of the instrument without resort to
       parol evidence as to that intent . . . . Where the language used is clear and of
       well-defined force and meaning, it must stand as written and extrinsic evidence of
       what was intended in fact cannot be adduced to qualify, explain, enlarge, or
       contradict the language . . . . [E]xtrinsic evidence, including the grantor's own
       statements, regarding the grantor's intentions is normally inadmissible. [T]he
       intentions of the testator must be gleaned from the written unambiguous will, not
       from what the testator or the will's scrivener, after execution of the instrument,
       contrarily declared, either orally or in writing, to be testator's intentions or the
       meaning of provisions in the will.

Id. at 444 (internal citations and quotations omitted).

       The trial court‟s conclusion that the veto power Dr. Bernard Winston gave Dr. Thomas

Winston over distributions to the twins carried with it fiduciary limitations appears to be based

upon language from the third amendment to the 1990 Trusts, which was superseded by the fifth

amendment, and revoked in the sixth amendment. The trial court‟s reliance on language from a

revoked amendment is erroneous. The trust documents currently in effect are not ambiguous and

clearly give Dr. Thomas Winston power to give or withhold consent to any distributions to the

twins with no criteria for or limitations on that consent.

       The 1990 Trusts contain many indications that Dr. Thomas Winston‟s consent power

over distributions to the twins is separate from his limited duties and responsibilities as

investment trustee, as well as that the consent power is absolute.

       First, the trust refers to Dr. Thomas Winston as “Thomas” when giving him consent

power and as a beneficiary in most every reference to him in the trust. On the other hand, the

provision creating the position of Investment Trustee initially gives the position to Dr. Bernard

Winston and then names as backup “THOMAS R. WINSTON.”                    Second, the term further

provides that if “THOMAS R. WINSTON” is unable or unwilling to act in that capacity, the

                                                  13
responsibility and authority of the Investment Trustee position simply revert back to the general

trustee. In contrast, each of the provisions giving “Thomas” authority to give or withhold

consent to distributions to the twins specify that such authority will pass to “his legal

representative during any period Thomas is under a legal disability” rather than the authority just

reverting to the general trustee or any other named individual.

       The Investment Trustee provision essentially just removes the “responsibility for, [and]

the authority to join in any decision regarding, the making or retaining of investments of the trust

estate” (emphasis added) from the general trustee, giving such responsibility and authority to the

Investment Trustee, instructing that the general trustee “take all reasonable actions to ensure that

the Investment Trustee does not violate any provisions of this Trust Agreement regarding the

permissible investments of the trust estate.” (emphasis added). No responsibility or authority

rests with the position of Investment Trustee besides that of making or retaining the investments

of the trust estate. The Investment Trustee provision, located in Article VI of the trust, does not

expressly nor implicitly implicate, much less limit, the consent terms of the distribution

provisions of Article II.

       The consent power given to “Thomas” (not to the Investment Trustee) is repeated

following each provision in which there is a possible distribution to the twins. It contains no

limitations on what basis the decision to give or withhold consent may be made. It neither

expresses nor implies any fiduciary duty on the consent power. The consent terms do not

mention the “Investment Trustee” or any trustee, just “Thomas.” Notably, the consent power is

repeated at the end of distribution provisions that each begin by giving the general trustee

direction or permission in the trustee’s sole discretion to make some distribution, and specify

certain purposes and certain limitations for the distribution, before the possible distribution even



                                                14
reaching “Thomas” (not the Investment Trustee) for his free and voluntary consent.               In

introducing the consent power, the words “Provided, however” and “Notwithstanding anything

set forth in the preceding paragraph” are used, indicating that the consent power overrides that

which is provided in the preceding language.

       For the provision regarding distributing income from the Generation-Skipping Residuary

Trust (“GSRT”), the consent power is given in the final two sentences:

       Provided, however, during Thomas‟ life, no distribution shall be made to or for
       the benefit of a descendant of Thomas without the consent of Thomas (or by his
       legal representative during any period Thomas is under a legal disability).
       Notwithstanding the above provisions, Thomas‟ consent to any distribution to be
       made to one of his descendants may not be given more than sixty (60) days in
       advance, and shall be deemed valid only to the extent it is given freely and
       voluntarily.

The consent portion of the provision titled “Distributions from GSRT to or for the Benefit of

Thomas‟ Children” reads:

       Notwithstanding anything set forth in the preceding paragraph, during Thomas‟
       life, no distribution shall be made to a child of Thomas under this Subparagraph
       A(3) without the specific approval of Thomas (or without the approval of
       Thomas‟ legal representative during any period Thomas is under a legal
       disability). Notwithstanding the above provisions, Thomas‟ consent to any
       distribution to be made to one of his descendants may not be given more than
       sixty (60) days in advance, and shall be deemed valid only to the extent it is given
       freely and voluntarily.

       The residuary trust (“RT”) provision on distribution of income allows the trustee in his

discretion to distribute to the twins from that trust “to the extent the income and principal of the

GSRT are insufficient” to make the distributions provided for in the GSRT for automobiles,

college tuition, textbook costs, and qualified student living expenses, but again states, “Provided,

however, during Thomas‟ life, no distribution shall be made to or for the benefit of a descendant

of Thomas without the consent of Thomas (or by his legal representative during any period

Thomas is under a legal disability).” The RT provision for distribution of principal for other

                                                15
reasons also specifies that “[n]otwithstanding anything set forth in this [s]ubparagraph [], during

Thomas‟ life, no distribution shall be made to a child of Thomas under this [s]ubparagraph []

without the specific approval of Thomas (or without the approval of Thomas‟ legal

representative during any period Thomas is under a legal disability).”

       The 1990 Trust further limits distributions “[i]n the event Thomas and his spouse begin

living separately as a result of marital discord.” It specifies that

       [d]uring such period, such income may be distributed only for the benefit of one
       of Thomas‟ descendants in accordance with permitted distributions to a
       “qualifying student” . . . and then only with the consent of Thomas. Thomas‟
       consent to any such distribution to be made to one of his descendants may not be
       given more than sixty (60) days in advance, and shall be deemed valid only to the
       extent it is given freely and voluntarily.

       In sum, the consent power Dr. Bernard Winston gave Dr. Thomas Winston in the 1990

Trusts is unambiguous and clearly contains no limitations on what basis the decision to give or

withhold consent may be made. No fiduciary duty is expressly or impliedly connected to the

consent power.      The consent terms do not mention the “Investment Trustee” but rather

“Thomas.” The distribution provisions containing the consent power all give the general trustee

direction or permission in the trustee’s sole discretion to make a distribution based on certain

purposes and with certain limitations. Only after this discretion has been exercised by the trustee

in accordance with the trustee’s fiduciary duties does the possible distribution come before

“Thomas” (not the Investment Trustee) for his free and voluntary consent. And finally, use of

the words “Provided, however” and “Notwithstanding anything set forth in the preceding

paragraph” indicates that the consent power overrides whatever is provided in the preceding

language.

       Based on the foregoing, the trial court‟s conclusion that Dr. Thomas Winston‟s

consent/veto power carried with it fiduciary responsibilities was a misapplication of law.

                                                  16
III. Hostility and Estrangement Not Unforeseen Circumstance

       Dr. Winston also argues that the trial court erred in its legal conclusion that there was

clear and convincing evidence in the record that circumstances changed such that the trusts must

be reformed to effectuate Dr. Bernard Winston‟s intent.

       At trial it was revealed that, prior to Dr. Bernard Winston‟s death, he had a positive

relationship with the twins. Testimony at trial also revealed that there had been significant

hostility between Dr. Thomas Winston and the twins. Two years after the death of Dr. Bernard

Winston, Dr. Thomas Winston and the twins‟ mother and his wife at the time, Julia Steinberg

(formerly Julia Winston), were divorced. The relationship between the twins and Dr. Thomas

Winston worsened with time, and at the time of trial they were completely estranged. The last

time the twins saw Dr. Thomas Winston before the trial was eight years earlier.

       In its judgment the trial court concluded that there was clear and convincing evidence that

there had been a change of circumstances such that Dr. Bernard Winston‟s intent would be

thwarted absent a reformation of the provisions of the 1990 Trusts “to eliminate [Dr. Thomas

Winston‟s] participation in decisions relating to discretionary distributions to the Twins[.]”

       The record, however, indicates that hostility and estrangement between family members

was not unforeseeable by Dr. Bernard Winston when he executed and amended the trust

instruments. First, from the inception of the 1990 Trusts, Dr. Bernard Winston specifically

provided for what should happen regarding distributions if Dr. Thomas Winston separated from

his wife. Second, the 1990 Trusts emphatically declare that “in all events, the Grantor's son,

DONALD S. WINSTON, M.D. and his descendants, if any, shall not receive nor be entitled to

any distributions under this Trust Agreement[,]” evincing a clear knowledge that a father may

have a negative or nonexistent relationship with his natural child and wish not to provide for him



                                                 17
or her. Furthermore, as previously discussed, the consent power language makes no indication,

express or implied, that such power is only to be exercised in the best interests of Thomas‟s

descendants, showing that his intent was that Dr. Thomas Winston be the final arbiter of whether

his descendants receive distributions from the trust.

          Based on the foregoing, the trial court‟s conclusion that there was a change of

circumstances requiring reformation of the 1990 Trusts to remove the consent/veto power Dr.

Bernard Winston expressly gave to Dr. Thomas Winston in the 1990 Trusts was a misapplication

of law.

IV. The 1993 Trust

          Dr. Thomas Winston is a general trustee for the 1993 Trust. However, the 1993 Trust, is

much like the 1990 Trusts. It contains many indications that Dr. Thomas Winston‟s consent

power over distributions to the twins is absolute and is separate from his position as trustee and

the duties and responsibilities of that position.

          First, the trust refers to Dr. Thomas Winston as “Thomas” when giving him consent

power and as a beneficiary in most every reference to him in the trust. On the other hand, the

opening paragraph creating the trust states the agreement is “between BERNARD H.

WINSTON, M.D., of Jackson County, Missouri, as „Grantor‟, and THOMAS R. WINSTON,

M.D., as „Trustee‟.”     Second, a term called “Successor Trustees” provides that “[i]n the event

THOMAS R. WINSTON, M.D. should fail or cease to act as Trustee for any reason, UNITED

MISSOURI BANK OF KANSAS CITY, N.A. shall become successor trustee.” In contrast, each

of the provisions giving “Thomas” authority to give or withhold consent to distributions to the

twins specify that such authority will pass to “his legal representative during any period Thomas




                                                    18
is under a legal disability” rather than the authority just reverting to the successor trustee or any

other named individual.

       Furthermore, any provisions detailing the position, duties, or responsibilities of the

Trustee, do not expressly nor implicitly implicate, much less limit, the consent/veto power the

1993 Trusts gives to “Thomas”.

       The consent power given to “Thomas” (not to the Investment Trustee) is repeated

following each provision in which there is a possible distribution to the twins. It contains no

limitations on what basis the decision to give or withhold consent may be made. It neither

expresses nor implies any fiduciary duty on the consent power. The consent terms do not

mention the Trustee, just “Thomas.” Notably, the consent power is repeated at the end of

distribution provisions that each begin by giving the Trustee direction or permission in the

trustee’s sole discretion to make some distribution, and specify certain purposes and certain

limitations for the distribution, before the possible distribution even reaching “Thomas” (not the

Investment Trustee) for his free and voluntary consent. In introducing the consent power, the

words “Provided, however,” “However,” and “Notwithstanding the above provisions of this

Paragraph” are used, indicating that the consent power overrides that which is provided in the

preceding language.

       For the provision regarding distributing income from the Residuary Trust (“RT”) portion

of the 1993 Trust, the consent power is given in the final sentence:

       Provided, however, during Thomas‟ life, no distribution shall be made to or for
       the benefit of a descendant of Thomas without the consent of Thomas (or by his
       legal representative during any period Thomas is under a legal disability).

The RT portion also provides for distributions of medical expenses, but specifies:

       However, any distribution to or for the benefit of one of Thomas‟ descendants
       shall only be made with the consent of Thomas (or Thomas‟s legal representative

                                                 19
       if Thomas is under a legal disability). Such consent to any distribution to be made
       to one of Thomas‟ descendants may not be given more than sixty (60) days in
       advance, and shall be deemed valid only to the extent it is given freely and
       voluntarily.

The RT portion further provides for distributions for qualifying students, with the caveat:

       Notwithstanding the above provisions of this Paragraph [], during Thomas‟
       lifetime, no distribution shall be made to a child of Thomas under this
       Subparagraph [] without the specific approval of Thomas (or without approval of
       Thomas‟ legal representative during any period Thomas is under a legal
       disability). Thomas‟ consent to any distribution to be made to one of his
       descendants may not be given more than sixty (60) days in advance, and shall be
       deemed valid only to the extent it is given freely and voluntarily

       In sum, the consent power Dr. Bernard Winston gave Dr. Thomas Winston in the 1993

Trust is unambiguous and clearly contains no limitations on what basis the decision to give or

withhold consent may be made. No fiduciary duty is expressly or impliedly connected to the

consent power. The consent terms do not mention the “Trustee” but rather “Thomas.” The

distribution provisions containing the consent power all give the Trustee direction or permission

to make a distribution based on certain purposes and with certain limitations. Only after this

discretion has been exercised by the Trustee does the possible distribution come before

“Thomas” for his free and voluntary consent.         And finally, use of the words “Provided,

however,” “However,” and “Notwithstanding the above provisions of this Paragraph” indicates

that the consent power overrides whatever is provided in the preceding language.

V. Attorney Fees

       Dr. Thomas Winston argues that the trial court‟s award of attorney‟s fees to the twins was

erroneous because it was based on their prevailing on most issues, and the trial court erred in

ruling in the twins‟ favor on those issues (no contest clause, breach of fiduciary duty,

modification). Dr. Thomas Winston makes the alternative argument that if this Court finds the

trial court did not err in ruling in the twins‟ favor on the particular issues he challenges on

                                                20
appeal, then the award of attorney‟s fees still must be remanded “for a recalculation of the

attorney‟s fees, with only fees for work done on successful claims chargeable to Dr. [Thomas]

Winston.” The twins argue in response that (1) section 456.10-1004 does not require that

attorney‟s fees be awarded only to a prevailing party, (2) the trial court cited numerous

reasonable factors that led it to award the twins‟ the amount of attorney‟s fees that it did, and (3)

because the litigation was brought and defended in good faith and there were issues addressed

which could only have been settled via judicial determination, the award of attorney‟s fees was

proper.

          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.

Review of a trial court‟s decision to award attorney‟s fees is for abuse of discretion. O'Riley v.

U.S. Bank, N.A., 412 S.W.3d 400, 418 (Mo. App. W.D. 2013) (citing In re Gene Wild Revocable

Trust, 299 S.W.3d 767, 782 (Mo. App. S.D. 2009)). If the award of attorney‟s fees is either

arbitrarily arrived at or so unreasonable as to indicate indifference and lack of proper judicial

consideration, then the trial court has abused its discretion. Id. The trial court‟s award of

attorney‟s fees is presumed correct, and the complaining party has the burden to prove otherwise.

Id. Appellate review of a challenge to an award of attorney‟s fees gives deference to the

discretion of the trial judge who, because of his or her office and experience, is considered an

expert in determining the proper amount of compensation for legal services. Id. at 418-19.

          The trial court‟s stated reasoning for awarding the twins‟ attorney‟s fees to be paid by

Thomas personally was as follows:




                                                 21
       Justice and equity require that the Twins, who did not initiate the instant suit but
       were brought into this litigation as third party defendants, and whose interests as
       beneficiaries of the Trusts were damaged as the result of Thomas‟s breach of
       fiduciary duties, be awarded costs and expenses in this case, including reasonable
       attorney‟s fees. To charge such costs and expense against Trust principal would
       damage the future interest of the Twins, who were innocent of wrongdoing in this
       case. Therefore, such attorney‟s fees are properly chargeable against Thomas,
       whose actions necessitated the Twins‟ counterclaim, as a surcharge for his breach
       of fiduciary duties.

While it is true that the twins did not initiate the instant action but were brought in as third-party

defendants; as discussed above, Dr. Thomas Winston did not have a fiduciary duty attached to

his consent/veto power, and thus there was no breach of fiduciary duty. The award of attorney‟s

fees is reversed and remanded for further consideration in accordance with this opinion.

       Additionally, the twins moved for attorney‟s fees for the instant appeal and the motion

was taken with the appeal.

       Missouri has adopted the “American Rule” which provides that litigants are
       generally required to bear the expense of their own attorney's fees absent statutory
       authorization or contractual agreement. However, both trial and appellate courts
       may award attorney's fees to a party if such an award is authorized by statute[.]

Rosehill Gardens, Inc. v. Luttrell, 67 S.W.3d 641, 648 (Mo. App. W.D. 2002) (citations omitted).

Section 456.10-1004 allows the court to award attorney fees in a judicial proceeding involving

the administration of a trust “as justice and equity may require[.]” Additionally,

       [w]hen fixing the amount of attorney's fees to be awarded, courts are considered
       experts, and their expertise extends to the value of appellate services. And,
       although appellate courts have the authority to allow and fix the amount of
       attorney's fees on appeal, we exercise this power with caution, believing in most
       cases that the trial court is better equipped to hear evidence and argument on this
       issue and determine the reasonableness of the fee requested.

Rosehill Gardens, Inc., 67 S.WW.3d at 648.




                                                 22
         The issue of attorney‟s fees, costs, and expenses on appeal is therefore remanded to the

trial court for determination “as justice and equity may require” in accordance with section

456.10-1004.

                                             Conclusion

         The twins did not violate the no-contest clause of the trusts. Dr. Thomas Winston‟s

veto/consent power over potential distributions to the twins is separate from any fiduciary role he

has in connection with the trusts and is not limited by fiduciary considerations.                 The

estrangement and hostility between Dr. Thomas Winston and the twins did not constitute

changed circumstances such that the trusts must be reformed to effectuate Dr. Bernard Winston‟s

intent. Based on the foregoing, we reverse the trial court‟s conclusion that Dr. Thomas Winston

breached a fiduciary duty as to the 1990 Trust, the trial court‟s order to remove Dr. Thomas

Winston‟s veto/consent power over potential distributions to the twins, and the trial court‟s order

that distributions for automobile and educational expenses be made to the twins from the 1990

Trust.

         At least part of the trial court‟s reasoning for its award of attorney‟s fees to the twins is

reversed in this opinion, and therefore the issue of attorney‟s fees, costs, and expenses of the case

is reversed and remanded for determination in accordance with section 456.10-1004 and the

conclusions of this opinion.



                                               __________________________________________
                                               VICTOR C. HOWARD, JUDGE

All concur.




                                                  23
