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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN RE: TRUSTS UNDER THE WILL OF            :     IN THE SUPERIOR COURT OF
ROBERT L. MONTGOMERY, JR., DEC.            :          PENNSYLVANIA
                                           :
                                           :
                                           :
                                           :
                                           :
APPEAL OF: H. BEATTY CHADWICK              :
                                           :     No. 1453 EDA 2016

                   Appeal from the Order Entered May 4, 2016
              In the Court of Common Pleas of Montgomery County
                    Orphans’ Court at No(s): No. 1977-X0448

BEFORE: DUBOW, RANSOM AND PLATT*, JJ.

MEMORANDUM BY DUBOW, J.:                         FILED FEBRUARY 28, 2017

        Appellant, H. Beatty Chadwick, appeals from the May 4, 2016 Order

entered in the Montgomery County Orphans’ Court denying Appellant’s

Exceptions to the Adjudications of two testamentary trusts (“Trust 6” and

“Trust 7”), of which Appellant is the lifetime beneficiary. We affirm.

        The full factual and procedural history in the instant case is long,

torturous, and infamous.1     Appellant’s instant averments are merely “the



*
    Retired Senior Judge Assigned to the Superior Court.
1
  After moving millions of dollars overseas during the pendency of his
divorce, and refusing to comply with orders to return the funds, Appellant
served 14 years in prison for “what [is] believed to be the longest
imprisonment on a civil contempt charge in United States History.” Lawyer
is Released After Serving Over 14 Years on Civil Contempt Charge,
N.Y. Times, July 11, 2009, available at
http://www.nytimes.com/2009/07/12/us/12contempt.html.
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latest installment of a decades-old divorce proceeding that has attracted

national attention and has spawned litigation in the Pennsylvania, Maine,

Delaware, and federal courts.”    Chadwick v. Chadwick, No. 3275 EDA

2009, unpublished memorandum at 1 (Pa. Super. filed May 1, 2012)

(Shogan, J., dissenting) (quotation omitted). The parties are well versed in

the intimate details and we, therefore, briefly summarize as follows.

      Appellant is the lifetime beneficiary of Trust 6 and Trust 7.     Since

1994, both trusts have been subject to an attachment Order issued by the

Delaware County Court of Common Pleas (“DCCCP”) to satisfy Appellant’s

substantial outstanding alimony pendente lite (“APL”) obligation to his now

ex-wife (“Ex-Wife”).

      On June 27, 2014, Appellees, PNC Bank, N.A., and Neil E. Cass, then

acting as trustees of Trust 6 and Trust 7, filed accountings of the trusts

(“Accounts”).   Appellant responded to Appellees’ accountings by filing

Objections, in which he disputed Appellees’ claims for attorney’s fees and

sought an Order surcharging Appellees for (i) overpaying Appellant’s

outstanding APL obligation to his former wife out of income from the trusts;

and (ii) failing to produce adequate income through the investment and

management of the trusts.

      On February 24, 2016, after a hearing, the Orphans’ Court confirmed

the Accounts and dismissed Appellant’s Objections.      Appellant timely-filed




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Exceptions. In an Order filed on May 4, 2016, the Orphans Court, sitting en

banc, denied Appellant’s exceptions.

      Appellant timely appealed.     Both Appellant and the Orphans’ Court

complied with Pa.R.A.P. 1925.

      Appellant presents the following three issues on appeal:

      1. Whether the court below erred by omitting to surcharge the
      trustees for the failure to distribute income from the trusts to the
      income beneficiary once the income beneficiary’s obligation to
      pay support had been satisfied?

      2. Whether the court below erred by dismissing a claim to
      surcharge the trustees for the failure to invest the funds of the
      trusts, or to so account for income and principal, as to produce
      annual income equal to the unitrust amounts specified in the
      provisions of the trusts?

      3. Whether the court below erred by allowing the trustees to
      recover expenses from the trusts?

Appellant’s Brief at 37.

      “Our standard of review is well-settled in cases involving [] an

[O]rphans’ [C]ourt decision.” In re Estate of Cherwinski, 856 A.2d 165,

167 (Pa. Super. 2004). As we have explained:

      The findings of a judge of the [O]rphans’ [C]ourt division, sitting
      without a jury, must be accorded the same weight and effect as
      the verdict of a jury, and will not be reversed by an appellate
      court in the absence of an abuse of discretion or a lack of
      evidentiary support. This rule is particularly applicable to findings
      of fact which are predicated upon the credibility of the witnesses,
      whom the judge has had the opportunity to hear and observe,
      and upon the weight given to their testimony. In reviewing the
      Orphans’ Court’s findings, our task is to ensure that the record is
      free from legal error and to determine if the Orphans’ Court's
      findings are supported by competent and adequate evidence and
      are not predicated upon capricious disbelief of competent and



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        credible evidence. However, we are not limited when we review
        the legal conclusions that Orphans’ Court has derived from those
        facts.

Id. (citation omitted).

                                  APL Payments

        In his first issue, Appellant avers that Appellees violated their fiduciary

duty by failing to make income distributions to him as required. He asserts

that Appellees improperly continued to divert income from the trusts to Ex-

Wife even after his outstanding APL support obligation had been satisfied,

and that the Orphans’ Court erred in not surcharging the trustees for so

doing. Appellant’s Brief at 42-46.

        At the heart of the instant claim is a disagreement between Appellant

and the Courts of this Commonwealth regarding the total sum of his APL

support obligation to Ex-Wife. Specifically, Appellant avers that an October

27, 2004 Order did not set an amount due in arrears. Rather, he contends,

the Order set the full amount of his APL obligation to Ex-Wife at

$125,820.00, and not at $125,820.00 more than what had already been

paid.

        This exact claim was previously raised by Appellant and addressed by

this Court as follows:

        On February 26, 1993, [Appellant] was ordered to pay $5,500
        per month for APL to [Ex-Wife]. The APL obligation was made
        retroactive to January 27, 1993. This amount was reiterated in
        a court order of January 5, 1994. [On October 21, 1994, upon
        Appellant’s refusal to make APL payments, an Attachment Order
        was issued directing the trustees of Trust 6 and Trust 7 to divert


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      all income otherwise payable to Appellant into an escrow account
      for the benefit of Ex-Wife.] On October 27, 2004, another order
      was entered that acknowledged [Appellant’s] prior APL payments
      of more than $300,000 and set his arrearage for failure to pay at
      $125,820.00.

                                          ***

      [Appellant] claims the trial court erred in determining the
      amount of APL he owed. He claims the October 24, 2004
      [O]rder set the total amount of APL owed to [Ex-Wife] at
      $125,820.00.      He argues he has already paid more than
      $300,000.00, so he is owed money rather than owing. We find
      no error in the trial court’s interpretation of that [O]rder.

      [Appellant] is correct that the [O]rder in question sets his
      arrearage at $125,820.00. The trial court interpreted this to
      mean that [Appellant] still owed that amount [in addition to the
      more than $300,000.00 already paid]. In the conclusions of law
      of the October 24, 2004 [O]rder, Paragraph 19 stated in relevant
      part: “[Appellant] is, therefore, liable to [Ex-Wife] for unpaid
      alimony pendente lite in the amount of $165,820, less $40,000,
      or a remaining balance of $125,820.” Conclusions of Law,
      10/24/04, ¶ 19. This conclusion of law is clear and we see no
      other interpretation of “[Appellant] . . . liable to [Ex-Wife]” and
      “remaining balance” than the plain meaning of “money still
      owed” by [Appellant] to [Ex-Wife].

PNC   Bank,    N.A.   v.   Applegate,     No.   929   EDA     2012,     unpublished

memorandum at 7-8 (Pa. Super. filed May 7, 2013).2

      Therefore,   because    Appellant    predicates   his    entire     argument

supporting his first issue on the incorrect assertion that his total APL

obligation was $125,820.00, we readily conclude that the trial court did not

err or abuse its discretion in denying Appellant’s request to surcharge

Appellees for the payments to Ex-Wife.

2
 Our Supreme Court denied Appellant’s Petition for Allowance of Appeal.
PNC Bank, N.A. v. Applegate, 84 A.3d 665 (Pa. 2014).



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                            Investment Strategy

      In his second issue, Appellant avers that the Orphans’ Court erred by

not surcharging Appellees for violating their “duty to produce reasonable

income to accomplish the purposes of the trusts[.]” Appellant’s Brief at 46.

The Orphans’ Court found that Appellant had “failed to present any credible

testimony or evidence supporting his claim that [Appellees] breached their

duty to treat all beneficiaries equally or invest trust assets prudently.”

Opinion re Trust No. 6, filed 2/24/16, at 5-6. See also Opinion re Trust No.

7, filed 2/24/16, at 6.

      Appellant is the lifetime beneficiary of two trusts that, upon Appellant’s

death, are distributable to certain enumerated charities.         As trustees,

Appellees owe certain duties to Appellant and the named charities. Primary

among them being “the preservation of the assets of the trust and the safety

of the trust principal.”   Estate of Pew, 655 A.2d 521, 542 (Pa. Super.

1994).   A trustee must “invest and manage property held in a trust as a

prudent investor would, by considering the purposes, terms and other

circumstances of the trust and by pursuing an overall investment strategy

reasonably suited to the trust.”   20 Pa.C.S. § 7203(a).      Where, as here,

there are two or more beneficiaries to a trust, “the trustee shall act

impartially in investing, managing and distributing the trust property, giving

due regard to the beneficiaries' respective interests in light of the purposes

of the trust.”   20 Pa.C.S. § 7773.    “The duty to act impartially does not



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mean that the trustee must treat the beneficiaries equally. Rather, the

trustee must treat the beneficiaries equitably in light of the purposes of the

trust.” Id.

      Where a trustee fails “to exercise common prudence, skill and caution

in the performance of its fiduciary duty,” a surcharge may be imposed as a

penalty. Estate of Pew, supra at 541. When evaluating whether a trustee

has violated the duty to act as a prudent investor would, courts are

instructed to focus on “standards of conduct and not of outcome or

performance.” 20 Pa.C.S. § 7213. “In a surcharge action, the propriety of a

trustee’s investment is judged as it appeared at the time of investment

and not in light of subsequent changes.” In re Estate of Warden, 2 A.3d

565, 578 (Pa. Super. 2010) (emphasis in original) (citation omitted).

Finally, “[o]ne who seeks to surcharge the trustee for breach of [duty] must

bear the burden of proving the particulars of the trustee's wrongful conduct.”

Estate of Pew, supra at 543.

      The Orphans’ Court neatly summarized the evidence adduced at the

hearing on Appellant’s claim that Appellees breached the fiduciary duty owed

to him as follows.

      [Appellant’s] sole witness, Wick Hollingshead, who was not
      offered as an expert witness in investment performance, failed
      to establish that the investment strategy [Appellees] utilized,
      over the account periods, constituted a breach of duty.
      [Appellees] utilized a ‘total return investment objective’ to invest
      the funds of [the trusts]; an investment strategy [that]
      Hollingshead testified he has used all of his life.              Mr.
      Hollingshead reviewed the securities in which [Appellees]


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      invested and testified that “he had no objection to any of them.
      They’re all very good or excellent.”      His testimony largely
      centered around what other types of investment strategies
      [Appellees] could have utilized that may have generated a larger
      amount of income for [Appellant]. He further stated that his
      analysis related to what the investments could have paid to the
      income beneficiary.

Opinion re Trust No. 6, filed 2/24/16, at 6 (citations omitted).      See also

Opinion re Trust No. 7, filed 2/24/16, at 6.

      The Orphans’ Court explained how this evidence fell short of meeting

Appellant’s burden of proof.

      Mr. Hollingshead failed to provide any concrete analysis to
      support a finding that there existed some other investment
      strategy that would have yielded higher income distributions for
      [Appellant] without negatively impacting the charitable
      remainder beneficiaries’ interest in the trust[s]. He also failed to
      offer any evidentiary support, in the form of a market analysis or
      otherwise, or to opine about the state of the financial markets
      and their fluidity over the account periods and the impact this
      may or may not have had on the trust income distributions.
      [The Orphans’ Court] found Mr. Hollingshead’s testimony lacking
      in substance and based upon a review of investments in
      hindsight and therefore insufficient to provide any basis for
      [Appellant’s] objection.

                                     ***

      [Appellant] did not establish that there was any superior
      investment mix that would have improved performance of the
      [trusts] and permitted [Appellees] to meet their obligation of
      impartiality between the income beneficiary and the remainder
      beneficiaries; nor did he establish that [Appellees][,] by
      investing prudently and consistently in a balanced portfolio for a
      total return over many years[,] breached their fiduciary duty.
      There was simply no credible evidence presented to support the
      claim that [Appellees’] investment strategy as it relates to [the
      trusts] was imprudent or that the beneficiaries received
      inequitable treatment.




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Opinion re Trust No. 6, filed 2/24/16, at 6-7 (citations omitted). See also

Opinion re Trust No. 7, filed 2/24/16, at 6-7.

      In his Brief to this Court, Appellant discusses, at length, his view of the

purposes for which the trusts were established and the income production

that he believes Appellees should have obtained. Appellant’s Brief at 47-50.

He also discusses the means by which Appellees might have produced more

income, including a drawn out discussion of the legality of adjusting income

and principal in a trust with a charitable remainder. Appellant’s Brief at 51-

53.

      The relevant inquiry on appeal, however, is not whether Appellant can

persuade this Court that Appellees violated a fiduciary duty to Appellant

because an alternative investment strategy existed. Instead, the inquiry is

whether Appellant met this burden in the Orphans’ Court. In re Estate of

Cherwinski, supra at 167. The Orphans’ Court here found that Appellant’s

evidence lacked substance and credibility, and he, therefore, failed to meet

his burden of establishing that he was entitled to relief. After careful review,

we conclude that the Orphans’ Court’s did not abuse its discretion or lack

evidentiary support in the record for its findings regarding the credibility of

Appellant’s witness and the weight to be afforded Appellant’s evidence. Nor

did the Orphans’ Court err as a matter of law. Appellant is, therefore, not

entitled to relief on this claim.




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                      Attorney’s Fees and Expenses

      In his final issue, Appellant avers that the Orphans’ Court erred in

permitting Appellees to recover attorney’s fees and expenses for (i)

intervening in Appellant’s divorce action to clarify the ongoing obligation to

pay income from the trusts into Ex-Wife’s escrow account; and (ii) defending

against Appellant’s claims for surcharges. Appellant’s Brief at 54-56.

      It is beyond dispute that legal counsel for a trust is entitled to

reasonable compensation for services rendered to the trust.              In re

LaRocca’s Trust Estate, 246 A.2d 337, 339 (Pa. 1968). When determining

whether a fee is fair and reasonable, courts are instructed to consider the

following factors:

      the amount of work performed; the character of the services
      rendered; the difficulty of the problems involved; the importance
      of the litigation; the amount of money or value of the property in
      question; the degree of responsibility incurred; whether the fund
      involved was ‘created’ by the attorney; the professional skill and
      standing of the attorney in his profession; the results he was
      able to obtain; the ability of the client to pay a reasonable fee
      for the services rendered; and, very importantly, the amount of
      money or the value of the property in question.

Id. Where a trustee successfully defends a claim that he or she breached a

fiduciary duty, the trustee is entitled to have his or her legal fees paid from

the trust.   In re Browarsky’s Estate, 263 A.2d 365, 366 (Pa. 1970).

Finally, “it is hornbook law that the reasonableness of the fee is a matter for

the sound discretion of the lower [c]ourt and will be changed by an appellate




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[c]ourt only when there is a clear abuse of discretion.”     In re LaRocca’s

Trust Estate, supra at 339.

       Appellant does not offer any argument or evidence disputing the

reasonableness of the amount of fees and costs claimed by Appellees.

Instead, Appellant avers that they are not entitled to any fees because he

established that they violated a fiduciary duty.

       As discussed supra, Appellant failed to establish that Appellees

violated any fiduciary duty.       Because Appellees successfully defended

against Appellant’s surcharge claim, they are entitled to the fees and costs

associated with defending that claim. In re Browarsky’s Estate, supra at

366.

       Moreover, as the Orphans’ Court found:

       There is no question that this present matter involved an
       extraordinary amount of work and involved unique and
       challenging circumstances, particularly that [Appellees] found
       themselves in the middle of a hotly contested divorce.
       [Appellees] have never filed any documents in this matter unless
       it was to respond to a filing of [Appellant’s] or to comply with an
       order of a court.

Opinion re Trust No. 6, filed 2/24/16, at 12. See also Opinion re Trust No.

7, filed 2/24/16, at 6-7.

       After a careful review of the record and the arguments of the parties,

we discern no clear abuse of discretion in the Orphans’ Court’s decision to

award attorney’s fees to Appellees. Accordingly, Appellant is not entitled to

relief on this claim.



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     Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/28/2017




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