                              ILLINOIS OFFICIAL REPORTS
                                            Appellate Court




                           In re Estate of Mercier, 2011 IL App (4th) 110205




Appellate Court               In re: the Estate of LEROY W. MERCIER, Deceased, JODY A.
Caption                       MARTIN, as Executrix of the Estate of LEROY W. MERCIER, Plaintiff-
                              Appellant, v. RHONDA E. MERCIER, Defendant-Appellee.



District & No.                Fourth District
                              Docket Nos. 4-11-0205, 4-11-0350 cons.


Filed                         December 2, 2011


Held                          Where appellant failed to provide an adequate record on appeal and in the
(Note: This syllabus          absence of any showing that the trial judge erroneously applied section
constitutes no part of        4.26 of the Trusts and Trustees Act in its rulings, the trial court’s orders
the opinion of the court      removing plaintiff as the trustee of a testamentary trust and appointing
but has been prepared         defendant as her replacement were affirmed.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under                Appeal from the Circuit Court of Sangamon County, No. 09-P-165; the
Review                        Hon. Leo J. Zappa, Jr., Judge, presiding.



Judgment                      Affirmed.
Counsel on                 Gordon W. Gates (argued) and Chad M. Skarpiak (argued), both of Gates,
Appeal                     Wise & Schlosser, P.C., of Springfield, for appellant.

                           Cheryl S. Neal (argued), of Mohan, Alewelt, Prillaman & Adami, of
                           Springfield, for appellee.


Panel                      JUSTICE COOK delivered the judgment of the court, with opinion.
                           Presiding Justice Turner and Justice Pope concurred in the judgment and
                           opinion.




                                             OPINION

¶1          Plaintiff, Jody A. Martin, appeals a series of trial court orders removing Jody as trustee
        of a testamentary trust and appointing defendant, Rhonda E. Mercier, as her replacement.
        Jody argues, pertinently, that the court abused its discretion in substituting Rhonda for Jody,
        deprived Jody of due process, and misconstrued section 4.26 of the Trusts and Trustees Act
        (760 ILCS 5/4.26 (West 2010)). As (1) we presume, due to substantial holes in the trial
        record, the court’s order was supported by adequate evidence and comported with procedural
        requirements and (2) no error of statutory interpretation occurred, we affirm.

¶2                                       I. BACKGROUND
¶3          On March 3, 2009, decedent, LeRoy W. Mercier, died testate. On March 24, 2009,
        LeRoy’s will was admitted to probate and Jody, one of his daughters, was appointed
        executrix under independent administration. Among its other provisions, the will called for
        a testamentary trust comprised primarily of three houses sharing an undivided tract of land
        in Springfield, two automobiles, some antique furnishings, and some property-maintenance
        equipment. At the time of his death, LeRoy resided in one of the houses and Rhonda, another
        of LeRoy’s daughters, in another. According to LeRoy’s will, the corpus was to be held in
        trust and managed for Rhonda’s benefit during her lifetime; several of LeRoy’s grandchildren
        were named remainder beneficiaries. Jody was appointed trustee and one of LeRoy’s minor
        granddaughters was nominated as substitute trustee.
¶4          The establishment of this testamentary trust was the subject of a prolonged dispute
        between Jody and Rhonda in the probate of LeRoy’s estate, initiated by Rhonda’s October
        23, 2009, petition to terminate independent administration of LeRoy’s estate and request for
        an accounting of Jody’s actions as executrix. Throughout the proceedings, Jody maintained
        the estate was insolvent; she requested that the estate be allowed to hold the property
        designated as the trust corpus in case the property had to be sold to cover the estate’s debts,


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     including Jody’s executrix fees and attorney fees. She showed progress toward selling off
     LeRoy’s real property not bequeathed to the trust, although the net proceeds were often
     modest after the mortgages were repaid.
¶5       Rhonda asked that the property be placed in trust and made productive, subject to
     refunding bonds to protect Jody’s liabilities as executrix. In a series of pleadings, including
     a March 18, 2010, petition to disqualify and remove Jody as trustee, Rhonda alleged Jody
     delayed establishing the trust; declined to make the trust property productive for Rhonda’s
     benefit; and wasted estate assets by spending them on unwarranted improvements in several
     of LeRoy’s real estate holdings, including those bequeathed to the trust, by allowing family
     members to use the trust property without paying rent or usage fees, and by failing to account
     for payments and loans to family members for unspecified services.
¶6       In an order entered June 23, 2010, the trial court terminated independent administration
     of LeRoy’s estate and required Jody, as executrix, to file an inventory and verified
     accounting. Rhonda attacked Jody’s subsequent filings–including a verified accounting with
     no value listed for the specifically bequeathed real estate–as noncompliant. Jody continued
     to plead that the estate was insolvent and no feasible plan to fund the testamentary trust could
     be devised. On September 17, 2010, Rhonda filed objections to Jody’s inventory and interim
     account and a petition to compel Jody to distribute the specifically bequeathed property to
     the trust.
¶7       Following a hearing, in an October 14, 2010, order, the trial court, in pertinent part,
     restricted Jody’s expenditure of estate assets, required Jody to fund the testamentary trust
     with one of the specifically bequeathed vehicles, and directed the parties to submit proposals
     concerning the feasibility of making the bequeathed trust property “self-supporting for the
     ultimate conveyance to the Trust as provided in the Decedent’s Will.” In a subsequent
     pleading, Jody maintained the trust was infeasible. Rhonda submitted three alternative
     proposals by which, Rhonda argued, the property could be made productive and sustainable.
¶8       On November 5, 2010, Rhonda notified Jody that their proposals would be argued at a
     December 17, 2010, hearing. The record on appeal contains no detailed account of the
     December 17, 2010, hearing: no verbatim transcript, bystander’s report, or agreed statement
     of facts as provided for in Illinois Supreme Court Rule 323 (eff. Dec. 13, 2005). The only
     record of the hearing is a docket entry. The entry indicates Jody, who was not personally
     present, was represented by counsel and Rhonda was present with counsel. It indicates a
     witness was sworn, testimony was taken, arguments were heard, and the trial court took the
     matter under advisement.
¶9       In a February 4, 2011, order, the trial court ordered Jody, as executrix, to convey the
     specifically bequeathed property to the trust. It further directed Jody, as trustee, to collect rent
     from family members who were residing on and occupying the real property bequeathed to
     the trust, to rent out any unoccupied residential properties, and to coordinate with Rhonda
     regarding payment for utilities and upkeep. Referring to section 4.26 of the Trusts and
     Trustees Act (760 ILCS 5/4.26 (West 2010)), the court provided that in the event Jody
     dissolved the trust pursuant to that statute the corpus would be distributed to Rhonda for her
     life and guardians ad litem would be appointed for any minor remaindermen. The court


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       reserved ruling on “all issues raised by the pleadings,” including explicitly executrix and
       attorney fees and implicitly Rhonda’s petition to disqualify and remove the nominated
       trustees.
¶ 10       On February 14, 2011, Jody filed a petition to clarify the trial court’s February 4, 2011,
       order. In relevant part, Jody indicated that she interpreted the order to require dissolution of
       the trust and distribution of the corpus to Rhonda as life tenant, free of trust. On February 28,
       2011, the court held a hearing on, among other things, the petition to clarify. Again, our
       record lacks a report of proceedings pertaining to this hearing. Following the hearing, that
       same day, the court entered a written order requiring the conveyance of the indicated property
       to the trust and substituting Rhonda for Jody as trustee. On March 4, 2011, Jody filed her
       notice of appeal with respect to the court’s February 4 and February 28, 2011, orders, No.
       4-11-0205.
¶ 11       On March 16, 2011, the trial court entered a further clarified order, again directing Jody,
       as executrix, to convey the specified property to the trust and substituting Rhonda for Jody
       as trustee. As in the February 4, 2011, order, the court indicated section 4.26 of the Trusts
       and Trustees Act would allow the trustee to terminate the trust in certain circumstances, in
       which case the court stated it would appoint guardians to protect the remainder interests of
       any of LeRoy’s minor grandchildren. The court authorized Rhonda to implement one of her
       proposals, subject to continuing reporting duties. Jody subsequently filed a notice of appeal
       relating to the March 16, 2011, order, No. 4-11-0350. Her appeals have been consolidated
       for our review.

¶ 12                                         II. ANALYSIS
¶ 13        Jody argues the trial court erred by (1) failing to notify Jody of its intent to remove her
       as trustee and provide her an opportunity to be heard, (2) removing Jody as trustee, (3)
       appointing Rhonda substitute trustee, (4) failing to make specific findings regarding the
       substitution of Jody with Rhonda as trustee, and (5) erroneously interpreting section 4.26 of
       the Trusts and Trustees Act (760 ILCS 5/4.26 (West 2010)). In response, Rhonda contends
       (1) Jody lacks standing to pursue this appeal; (2) the court’s orders are not appealable; (3)
       the absence of a transcript, bystander’s report, or agreed statement of facts with respect to the
       December 17, 2009, hearing warrants affirmance; (4) Jody forfeited appellate review of her
       claims; (5) the court did not err in its interpretation of section 4.26 of the Trusts and Trustees
       Act; and (6) the court did not err in substituting Rhonda for Jody as trustee. Because Jody
       failed to provide an adequate record and the court did not erroneously apply section 4.26 of
       the Trusts and Trustees Act in its rulings, we affirm.
¶ 14        We first consider Jody’s argument that the trial court erred in removing Jody and
       substituting Rhonda as trustee. The appointment and removal of trustees is a matter of the
       trial court’s discretion, and the court’s judgment will not be reversed absent an abuse of that
       discretion. Chicago Title & Trust Co. v. Chief Wash Co., 368 Ill. 146, 156, 13 N.E.2d 153,
       157 (1938). Obviously, the appropriateness of the appointment or removal of a trustee
       depends on the particular facts and circumstances of each case. Id.
¶ 15        The absence of a sufficient report of proceedings in the trial record is dispositive of this

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       issue. In general, a trial court’s judgment enjoys presumptions that it “was in conformity with
       law and had a sufficient factual basis.” Foutch v. O’Bryant, 99 Ill. 2d 389, 392, 459 N.E.2d
       958, 959 (1984). An appellant can overcome these presumptions only by supporting his
       claim of error with “a sufficiently complete record of the proceedings at trial.” Id. at 391, 459
       N.E.2d at 959. “Any doubts which may arise from the incompleteness of the record will be
       resolved against the appellant.” Id. at 392, 459 N.E.2d at 959.
¶ 16        Jody’s possible forfeiture or waiver of her arguments is a parallel consideration. The
       appellate court may address only those errors properly preserved for review. See York v. El-
       Ganzouri, 353 Ill. App. 3d 1, 17-18, 817 N.E.2d 1179, 1194 (2004). Ordinarily, this requires
       the future appellant to make a timely–i.e., contemporaneous–objection and “identify the same
       basis for his objection in the trial court that he will argue on appeal.” Id. at 18, 817 N.E.2d
       at 1194. “[G]rounds not stated are waived on review.” Gausselin v. Commonwealth Edison
       Co., 260 Ill. App. 3d 1068, 1079, 631 N.E.2d 1246, 1254 (1994).
¶ 17        Aside from the trial court’s docket entry, no record of the December 17, 2010, hearing
       is included in the record on appeal. From the docket entry, we know Jody was not personally
       present but was represented by counsel and Rhonda was present with counsel. Testimony and
       arguments were heard, but their subject was not specified in the record. The court’s February
       4, 2011, order contains no specific factual findings or summary of evidence heard on
       December 17, 2010. Jody maintains the scope of evidence and arguments was controlled by
       Rhonda’s notice of hearing, which pertained specifically to Rhonda’s proposal for
       distribution of estate property to the trust, but she lacks support for this proposition.
¶ 18        The trial court’s initial February 4, 2011, order did not remove Jody as trustee. The
       substitution order followed a hearing on February 28, 2011, concerning Jody’s petition to
       clarify the February 4, 2011, order. We have no record of the arguments presented at the
       February 28, 2011, proceedings. Without a report of the December 17, 2010, and February
       28, 2011, proceedings, Jody fails to overcome our presumption that the court’s subsequent
       orders were supported by sufficient evidence, especially in light of our deferential standard
       of review regarding the court’s substitution of the trustee. The court was not required to state
       its specific factual findings or its reasoning on the record. People v. Curtis, 296 Ill. App. 3d
       991, 1000, 696 N.E.2d 372, 379 (1998). However, even if the record disclosed the court’s
       findings, we would lack the evidence against which to evaluate them.
¶ 19        Jody further claims that the notice of hearing, which was limited in scope to Rhonda’s
       proposal for distribution of estate assets, establishes she was denied notice that the December
       17, 2010, and February 28, 2011, proceedings could result in her removal as trustee. Indeed,
       prior to his removal, a trustee must be given notice that the trusteeship is in jeopardy and
       allowed an opportunity to be heard. People v. Powell, 353 Ill. 582, 592-93, 187 N.E. 419,
       423-24 (1933). However, our presumption that the trial court’s judgment conformed to the
       law extends to procedural and constitutional considerations as well as the court’s application
       of principles and standards to facts. Absent a report of proceedings, we presume Jody was
       given due notice and an opportunity to argue against her removal. Alternatively, we would
       expect Jody to have objected whenever the topic of her removal first arose, whether at the
       December 17, 2010, or February 28, 2011, hearing or in the court’s February 28, 2011, order.
       That no objection appears in the record–even in postjudgment filings–indicates that Jody

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       either waived the notice requirement or forfeited our review of this issue.
¶ 20       Finally, Jody claims the trial court erred by misapplying section 4.26 of the Trusts and
       Trustees Act (760 ILCS 5/4.26 (West 2010)). Section 4.26 lays out a procedure allowing a
       trustee to terminate a small trust in certain circumstances. Jody’s interpretation of the court’s
       references to section 4.26 in its February 4, 2011, and March 16, 2011, orders is mistaken.
       Contrary to Jody’s assertion, the court never actually cited section 4.26 as the source of its
       authority to substitute Rhonda for Jody as trustee. Moreover, in none of its orders did the
       court dissolve the trust; instead, the court acknowledged section 4.26 potentially authorized
       the trustee to terminate this trust. The trust remained intact even after the March 16, 2011,
       clarified order. Accordingly, the trial court did not err in the way Jody alleges.

¶ 21                                   III. CONCLUSION
¶ 22       For the foregoing reasons, we affirm the trial court’s judgment.

¶ 23       Affirmed.




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