                    NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                   IN THE
            ARIZONA COURT OF APPEALS
                               DIVISION ONE


                   In re the Matter of:
 THE DONALD R SCHULTZ AND JUANITA Q SCHULTZ LIVING
       TRUST, DATED JULY 25, 1996 An Arizona Trust.
           _________________________________

           ERIK SCHULTZ, Petitioner/Appellant/Cross-Appellee,

                                       v.

        MARTA SCHULTZ, Respondent/Appellee/Cross-Appellant.


                            No. 1 CA-CV 17-0326
                              FILED 5-8-2018


          Appeal from the Superior Court in Yavapai County
                       No. V1300PB201580097
             The Honorable John David Napper, Judge

                                 AFFIRMED
                                 COUNSEL

Law Office of Marguerite Kirk PLLC, Prescott
By Marguerite A. Kirk
Co-Counsel for Petitioner/Appellant/Cross-Appellee

Hans Clugston PLLC, Prescott
By Hans Clugston
Co-Counsel for Petitioner/Appellant/Cross-Appellee

Musgrove Drutz Kack & Flack PC, Prescott
By Mark W. Drutz, Jeffrey Gautreaux, Andrew J. Diener
Counsel for Respondent/Appellee/Cross-Appellant




                      MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Maria Elena Cruz joined.



W E I N Z W E I G, Judge:

¶1             This is a dispute between sibling co-trustees for control of a
family trust. Erik Schultz (“Brother”) petitioned the superior court to
remove Marta Schultz (“Sister”) as co-trustee. The court denied his petition
after significant litigation, including a five-day trial. The court found
Brother had not met his burden of proof for removal. Brother appeals from
the denial and Sister cross-appeals. We affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2             Donald Schultz (“Father”) and Juanita Schultz (“Mother”)
created a living trust in 1996, naming themselves as co-trustees and primary
beneficiaries. At present, the trust assets include Mother’s former home in
Cornville, a rental property in Cottonwood, a Sunlight investment account,
a bank account holding rental income and two vehicles.

¶3           Mother became sole trustee after Father died in February
2012, but Alzheimer’s disease rapidly consumed her health. Upon the
death or incapacity of Mother and Father, the trust directed that Brother


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and Sister would serve as successor co-trustees. In August 2013, Brother
petitioned the superior court to disqualify Mother as trustee based on her
incapacity. The court granted the petition in October 2013 and confirmed
Brother and Sister as co-trustees.

¶4             Problems soon arose. The trust required joint action by co-
trustees, including their joint consent and signatures, but Brother and Sister
shared a hostile, dysfunctional relationship that devolved into conflict and
inaction. Brother complained that Sister would not communicate about
trust administration issues, including investments, sale decisions and
planning for Mother to receive public benefits.

¶5            Brother and Sister tried mediation, which resulted in a
February 2014 written agreement to, among other things, open a trust bank
account to receive rental proceeds from the Cottonwood property. But their
tenuous relationship continued to erode. And in September 2015, Brother
petitioned the Yavapai County Superior Court to either remove Sister as co-
trustee or direct that Brother had unilateral authority to administer the
trust. Brother argued that removal was appropriate under A.R.S. § 14-
10706(B)(2) because Sister’s lack of cooperation substantially impaired
administration of the trust and under A.R.S. § 14-10706(B)(3) because Sister
was unfit, unwilling and persistently failed to administer the trust for the
benefit of Mother. He complained, in particular, that Sister never opened
the agreed-upon trust bank account; did not participate in creating a
management plan for trust assets; and prevented him from selling the
Cornville home.

¶6             Sister objected. She argued that Brother had tried to
marginalize her involvement in the trust since their appointment as co-
trustees. She claimed that Brother was responsible for problems with the
management plan and bank account. She nonetheless proposed an
alternative trust management plan that vested Brother with “sole signatory
authority over Trust assets,” subject to her oversight and consent, and
included a mediation clause.

¶7             Despite shared animosity, Brother and Sister resolved some
issues during the course of litigation. First, they stipulated to modify the
trust, vesting Brother with sole signatory authority over trust bank accounts
in January 2016. The stipulation enabled Brother to open a single-signature
trust bank account. He immediately did so. Second, after seeking input
from real estate professionals, Sister agreed that Brother could sell the
Cornville home and retain Brother’s listing agent. Third, Sister conceded




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that Mother needed benefits planning and agreed that Brother should move
forward on that front.

¶8            The superior court ultimately held a five-day bench trial. The
parties introduced more than 50 exhibits and called six witnesses, including
Brother, Sister, a bank representative, two real estate agents and a hired
caretaker (by deposition testimony).

¶9            Brother and Sister presented conflicting evidence and
narratives. Sister argued that she was both capable and willing to
administer the trust and that no basis existed for her removal as co-trustee.
She presented evidence that she knew the extent of trust assets and
emphasized that the parties had largely resolved Brother’s complaints. She
also pointed to her proposed trust management plan as evidence of her
interest and engagement in trust administration. Sister urged the court to
adopt her plan to resolve any lingering administration concerns.

¶10            Brother countered that Sister had repeatedly stymied his
efforts to administer the trust for Mother’s benefit. He pointed to Sister’s
initial objection to becoming a co-trustee, refusal to open a trust bank
account, “stonewall[ing] on public benefits planning and the disposition of
real estate,” refusal to compensate him for repairs of trust property and
failure to provide documents and information for an estate management
plan. Brother also objected to Sister’s proposed trust management plan as
unauthorized and unworkable.

¶11           After considering all evidence and argument, including
documents, testimony and trial briefs, the superior court denied Brother’s
petition to remove Sister as co-trustee. The court found that Brother had
not met his burden of proof and largely adopted Sister’s proposed trust
management plan, vesting Brother with authority to administer the trust
assets subject to Sister’s oversight and consent. Brother was directed to
send monthly trust account statements to Sister and to provide notice of
investment decisions and transactions of $2,500 or more, along with notice
of contracts for the sale or rental of trust property. Sister could object to
investment decisions or transactions within five calendar days.

¶12           The court denied attorney’s fees “on both sides” but later
granted Sister her costs as the prevailing party. After the trial, Brother filed
a motion for correction, clarification or, alternatively, reconsideration of the
court’s order. The court summarily denied the motion.

¶13           Brother timely appealed and Sister cross-appealed. We have
jurisdiction pursuant to A.R.S. § 12-2101(A)(1).


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                                 DISCUSSION

A.     Mootness.

¶14          Mother passed away during the pendency of this appeal. The
parties dispute whether and how her death impacts the appeal. Sister
argues the appeal is moot because Brother only sought her removal to
protect Mother.

¶15            That argument fails. This appeal is not moot because our
decision still has real effects on the rights and duties of the parties. Vinson
v. Marton & Assocs., 159 Ariz. 1, 4 (App. 1988) (“A decision becomes moot
for purposes of appeal where as a result of a change of circumstances before
the appellate decision, action by the reviewing court would have no effect
on the parties.”). Mother’s death did not terminate the trust or relieve
Brother and Sister of their ongoing duties as co-trustees. Rather, the
administration of the trust continues, and Brother and Sister must carry out
their responsibilities as provided by the terms of the trust and the superior
court’s order.

B.     General Principles.

¶16           The decision whether to remove a trustee lies within the
sound discretion of the superior court and we will not reverse that decision
absent an abuse of discretion. See A.R.S. § 14-10706(A)-(B); Restatement
(Third) of Trusts § 37 cmt. f (2003). The superior court’s decision is entitled
to deference because it is based upon an assessment of evidence and
witness credibility. In re Estate of Newman, 219 Ariz. 260, 271, ¶ 40 (App.
2008).

¶17           Our task is limited accordingly. We do not reassess
“conflicting evidence or redetermine the preponderance of the evidence,
but examine the record only to determine whether substantial evidence
exists to support the trial court’s action.” In re Estate of Pouser, 193 Ariz. 574,
579, ¶ 13 (1999). We also accept the superior court’s factual findings unless
they are clearly erroneous. Newman, 219 Ariz. at 265, ¶ 13.

C.     Removal of Co-Trustee.

¶18           Brother argues the superior court should have removed Sister
as co-trustee. We begin with two fundamental precepts. Mother and
Father’s express preference and designation of Brother and Sister as
successor co-trustees is entitled to great deference and should not be lightly



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                            Decision of the Court

reversed. Id. at 270-71, ¶ 39. And, Brother shoulders the burden of proof to
remove Sister as co-trustee. In re Taylor’s Estate, 5 Ariz. App. 144, 147 (1967).

¶19            We find the record contains substantial evidence supporting
the superior court’s determination. Although Brother and Sister have
frequently clashed, the record does not indicate that Sister should be
removed as co-trustee based on lack of cooperation. A.R.S. § 14-
10706(B)(2). 1

¶20          To begin, the superior court heard all the evidence and
rebuffed any argument that Sister was wholly responsible for all sibling
discord and administrative delay. The court instead placed meaningful
blame at Brother’s feet:

       [Brother] in some instances . . . set out to make sure that he
       wouldn’t get cooperation from [Sister]. . .. [He] is one of those
       guys that tries to control everything and tries to bully [Sister]
       around. And that’s been apparent in this litigation to me by
       listening to him testify and by gauging the way that he acted
       under certain circumstances.

¶21           The record also contains substantial evidence to share the
blame. Brother had a propensity to pivot and, more than once, changed his
position after the parties had reached an agreement. For instance, Brother
only insisted upon sale of the Cornville home after he agreed to accept
“unilateral authority to prepare and rent” the home. Brother later agreed
to resolve various issues at a pretrial conference, but then refused to sign
the stipulation memorializing the agreements.

¶22            Second, while Brother emphasized that Sister failed to open a
trust bank account, the record contained evidence showing that Sister
withheld her consent because Brother misrepresented the character of the
trust on at least one application.

¶23          Third, the record indicates that Brother was litigious and
intimidating. He sued Sister more than once before filing his petition,

1       The Uniform Trust Code recognizes that an appointment of co-
trustees inherently complicates the decision-making process. See Uniform
Trust Code § 703 cmt. We assume the legislature adopted those comments.
State v. Sanchez, 174 Ariz. 44, 47 (App. 1993) (stating that when statutes are
based on model acts, Arizona courts assume the legislature meant to adopt
the comments to the model acts).



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                           Decision of the Court

including an action in California alleging defamation and intentional
infliction of emotional distress. 2 He also threatened to sue Mother’s
caretaker for $250,000. The caretaker testified that Brother later forced him
to sign affidavits that Brother had prepared, presumably under the threat
of litigation. In addition, the court heard evidence, albeit conflicting, that
Brother moved Mother to Massachusetts without Sister’s knowledge or
consent.

¶24           And last, Brother complained that Sister refused to
compensate him for repairing the Cornville home, but the record indicates
that Sister questioned his proposed rates and unverified hours, asked him
for professional estimates and only refused compensation after she received
no estimates.

¶25           We further note that Sister resolved most of Brother’s trust
administration issues before trial. She agreed to modify the trust to allow
Brother to manage trust bank accounts without her signature, agreed to sell
rather than rent trust property, agreed to establish a protocol for handling
offers to purchase, agreed that Mother needed benefits planning and agreed
that Brother should take the lead.

¶26           Nor does the record demonstrate that Sister was unfit,
unwilling or persistently failed to administer the trust for Mother’s benefit.
A.R.S. § 14-10706(B)(3). The record instead indicates that Sister knew the
extent of the trust’s assets; stipulated to give Brother sole signatory
authority over trust bank accounts; sought information about selling and
renting trust-owned real property; communicated with Brother regarding
the same; agreed that Mother needed benefits planning; authorized Brother
to retain an attorney for that purpose; and proposed a trust management
plan that the superior court partially adopted.

¶27           Brother insists he, too, presented substantial evidence that
Sister should be removed as co-trustee. But he misses the point. Our
singular inquiry is to determine whether the record contains substantial
evidence to support the superior court’s decision. Thus, even assuming
Brother did present substantial evidence in his favor, it is “of no significance
so long as there is evidence to support the trial judge’s findings.” Newman,
219 Ariz. at 271, ¶ 40. “[I]t is not the function of this court to reweigh the


2       Brother argues that we cannot consider the California lawsuit
because it was not published under Arizona Supreme Court Rule 111(d).
But we do not cite the lawsuit as precedential. We only consider it as
reflective of prior litigation between Brother and Sister.


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                          SCHULTZ v. SCHULTZ
                           Decision of the Court

facts or to second-guess the credibility determinations of the judge who had
the opportunity to evaluate the witnesses’ demeanor and make informed
credibility determinations.” Id.

¶28           In sum, substantial evidence exists to support the superior
court’s finding that Sister should not be removed as co-trustee. The court
did not err.3

D.     Final Order.

¶29          Brother next contends the superior court issued inconsistent
preliminary and final orders. Brother argues the court initially directed that
he would have “sole authority” over trust assets, but excluded that
language in the final order.

¶30            We are not persuaded. The superior court never granted
Brother sole, unconditional authority over the trust assets. While the court
orally indicated that Brother would have “sole authority over trust assets,”
it imposed express limitations on that authority. Indeed, the very same
sentence reads: “[T]he Court’s ruling is that [Brother] has sole authority
over trust assets under the following conditions.” In short, Brother’s assertion
that the court initially granted him sole authority over trust assets, but then
failed to include that provision in the final order, is inaccurate.

E.     Costs and Attorney’s Fees.

¶31            The Trust Code provides two distinct avenues for trustees to
recover their attorney’s fees and costs in trust litigation. Trustees are
entitled to recover reasonable fees and costs against the trust under A.R.S. §
14-11004(A) where incurred in the good faith prosecution or defense of trust
litigation. By contrast, trustees may recover fees and costs against any other
party under A.R.S. § 14-11004(B) at the discretion of the superior court.

¶32         Brother and Sister sought an award of fees and costs against
one another under A.R.S. § 14-11004(B). The superior court denied


3      At oral argument, Brother’s counsel argued that the superior court
had no authority to modify the duties of co-trustees. We disagree. For
instance, the court has express authority to modify a trust “if continuation
of the trust on its existing terms would be impracticable or wasteful or
would impair the trust’s administration,” A.R.S. § 14-10412(B), and where,
based on unanticipated circumstances, modification “will further the
purposes of the trust,” A.R.S. § 14-10412(A).


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                           Decision of the Court

attorney’s fees “on both sides,” granted costs to Sister and denied costs to
Brother. Both parties claim they were entitled to attorney’s fees and costs.

¶33            We review an award of attorney fees and costs for an abuse of
discretion and view the record in the light most favorable to upholding the
trial court’s decision. In re Indenture of Trust Dated Jan. 13, 1964, 235 Ariz.
40, 51, ¶ 41 (App. 2014). We will affirm if any reasonable basis exists for the
decision. Id.

¶34            The court did not abuse its discretion in denying attorney’s
fees to both sides under A.R.S. § 14-11004(B). To be clear, the court was not
pleased with either party, finding that “[Brother and Sister] have acted like
children in this court, and . . . in administering this trust for the benefit of
their mother. And it’s been an ongoing problem between both of them.”
We affirm. 4

¶35           Nor did the court abuse its discretion in awarding costs to
Sister and denying them for Brother. For starters, Sister prevailed under
any metric. Brother sued Sister with two objectives in mind. He wanted
the court to either remove Sister as co-trustee or grant him unilateral
authority to administer the trust. He received neither.

¶36          Brother and Sister likewise request their attorney’s fees and
costs on appeal under A.R.S. § 14-11004(B). We deny both requests in our
discretion.




4      Sister also seeks an award of attorney’s fees against the trust under
A.R.S. § 14-11004(A), but only if her share of trust assets remains unaffected.
Sister offers no authority for this hybrid fee approach and we find none.
The statute identifies two distinct avenues to recover fees in trust litigation;
it does not authorize or envision a litigant can travel both avenues at once.
We deny her request for hybrid relief.


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                       SCHULTZ v. SCHULTZ
                        Decision of the Court

                               CONCLUSION

¶37          We affirm. The superior court had substantial evidence to
deny Brother’s petition for removal and did not abuse its discretion in
awarding attorney’s fees and costs.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




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