1 NOT DESIGNATED FOR P UBLICATION

No . 120, 865

IN THE COURT OF APPE ALS OF THE STATE OF KANSAS

K

AREN S C H MITENDORF , Appell ee/Cross

- Appell ant ,

v.

D EBORAH T AYLOR , as Trustee of the V. L OUISE P ARK R EVOCABLE L IVING T RUST ; and D EBORAH T AYLOR , Individually , Appell ants/ Cross

- Appell ees

.

MEMORANDUM OPINION

Appeal from Douglas District Court; J AMES R. M C C ABRIA , judge. Opinion filed June 19 , 2020

. Affirmed.

Geri L. Hartley , of Paola , fo r appellant s/cross

- appellees

.

Jeff rey R

. King , of Sage Law LLP, of Overland Park , for appellee /cross

- appellant

.

B efore B RUNS , P.J., G REEN , J., and T IMOTHY J. C HAMBERS , District Judge , assigned

.

P ER C URIAM : This is a companion appeal to Schmitendorf v. Taylor ( No. 120, 123 , this day decided)

. The facts applicable to this appeal are set forth in that opinion. Because this appeal and cross

- appeal involve only the question of attorney fees, we will limit our discussion of the facts to those relevant to our analysis of that question. For the reasons set forth in this opinion, we conclude that the district court appropriately exercised its discretion in ruling on the conflicting motions f or attorney fees filed by the parties. Thus,
we affirm.2 P ROCEDURAL H ISTORY

On November 8, 2016, Schmitendorf filed a petition against Taylor both in her capacity as trustee of the V. Louise Park Revocable Living Trust and individually

. More than a year later, the district court granted summary judgment against Schmitendorf and in favor of Taylor. In doing so, the district court found that the plain and unambiguous language of a prior F amily S ettlement A greement entered into by the parties precluded
the claims asserted by Schmitendorf against Taylor in this case

.

Both Schmitendorf and Taylor filed motions asking the district court for an award
of a ttorney fees and expenses

. Prior to the district court's granting of summary judgment , Schmitendorf request ed that Taylor be prevented from paying her attorney fees and

expenses out of the trust assets. S chmitendorf also asked that the district court require Taylor to reimburse the trust for any funds already paid. In the alternative, Schmitendorf sought to hav e the district court authorize the payment of her attorney fees and expenses
from trust assets

. Later, a fter the district court granted summary judgment in her favor, Taylor sought to have Schmitendorf pay her attorney fees and expenses

.

The district court denied both motions . However , the district court authorized the payment of Taylor 's attorney fees and expenses out of trust assets. In its memorandum decision, the district court concluded:

"This Court declines to find the petition [file d by Schmitendorf against Taylor] was frivolous or brought in bad faith. Regardless of how it is cast, the action was clearly an attempt to nullify the [Family Settlement Agreement] which Plaintiff had executed. It forced Ms. Taylor to defend the Trust. An d thus, justice and equity under K.S.A. 58

- 1004a does weigh in favor of having the Trust pay the attorney fees of Ms. Taylor and all other expenses associated with the prosecution of this action. The Court declines to require Ms. Schmitendorf to reimburse the Trust for those fees."3 Thereafter, Taylor filed a timely notice of appeal from th e district court's order , and Schmitendorf filed a timely notice of cross
- appeal

.

A NALYSIS

Failure to A ss ess Attorney Fees Against Sch m itendorf

Taylor contends that t he district court erred in ordering that her attorney fees and expenses be paid out of trust assets rather than by Schmitendorf. " In a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may
award cos ts and expenses, including reasonable attorney fees, to any party, to be paid by another party or from the trust that is the subject of the controversy. " K.S.A . 58a

- 1004 ; see also In re Estate of Somers , 277 Kan. 761, 773, 89 P.3d 898 (2004) (aw ard of attorney fees involving the administration of a trust)

. Similarly , K.S.A. 58a

- 709 empowers the district court to restrict or grant reimbursement to the trustee for reasonable

trust

- related expenses from the trust property.

Where the district court has authority to award attorney fees and expenses , we view its decision under the abuse of discretion standard. Wiles v. American Family Life
Assurance Co. , 302 Kan. 66, 81, 350 P.3d 1071 (2015) . A district court abuses its
discretion o nly if " no reasonable person would adopt the position taken by the district

court. " Cresto v. Cresto , 302 Kan. 820, 848, 358 P.3d 831 (2015). A j udicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. Consolver v. Hotze , 306 Kan. 561, 568

- 69, 395 P.3d 405 (2017).

In Kansas, judges "a re experts as to the reasonableness of attorneys' fees and may, in the interest of justice, fix counsel f ees when in disagreement with views of the trial judge

. " In re Somers , 277 Kan. at 773. In a case involving a trust, a n award of attorney4 fees and expenses is deemed to be reasonable if the litigation proved beneficial to the

trust estate. Moore v. Adkins , 2 Kan. App. 2d 139, 151, 576 P.2d 245 (1978). As a general rule, l egal proceedings benefit a trust estate if questions are resolved so the estate can be properly administe red. In re Trusteeship of the Will of Daniels , 247 Kan. 349, 357, 799 P.2d 479 (1990).

Here, on November 20, 2018, t he district court conducted a hearing on the issue of attorney fees. The district court took the matter under advisement and requested tha t the parties submit additional documentation in support of their claims for attorney fees. After receiving the additional documentation, the district court found that the lawsuit was not frivolous and ordered that Taylor's attorney fees and expenses be pa id out of trust assets rather than by Schmitendorf. Additionally, the district court ordered that Schmitendorf would be responsible for paying her own attorney fees and expenses.

On January 18, 2019, the district court entered a memorandum decision setti ng forth its findings and conclusions relating to the attorney fee issue. Although the district court expressed doubt that Schmitendorf truly believed she had reserved her claims, it
noted that an affidavit signed by her former attorney stated that he did not view the Family Settlement Agreement as waiving her right to subsequently challenge the validity
of the 2013 Trust Amendment. Based on t he attorney's affidavit, the district court found
that it was " at least willing to accept the notion that Plaintiff had reason to think that there was potential legal merit to her claim." Thus, the district court determined that Schmitendorf's petition was not frivolous and that "justice and equity under K.S.A. 58

- 1004a does weigh in favor of having the Trust pay the at torney fees of Ms. Taylor and all other expenses associated with

. . . this action. "

Reasonable minds could disagree regarding whether Schmitendorf should be required to pay Taylor 's attorney fees and expenses or if they should be paid out of the trust assets. Certainly, it is a close call. However, it was one for the dis trict court to make5 in the exercise of its sound discretion. Under these circumstances, Taylor has not shown
that the district court abused its decision in declining to order Schmi tendorf to pay her attorney fees and expenses

.

Payment of Taylor's Attorney Fees from the Trust

In her cross

- appeal, Schmitendorf asserts the district court erred in allowing Taylor 's attorney fees and expenses to be paid out of the trust assets

. As we noted in the previous section, K.S .A. 58a

- 1004 expressly authorizes the district court to order that attorney fees and expenses in judicial proceeding s involving the administration of a trust
be paid " from the trust that is the subject of the controversy ." Once again, our standard of
review is whether the district court abused its discretion. Wiles , 302 Kan. at 81

. Also, as discussed above, l egal proceedings generally benefit a trust estate if questions are resolved so the estate can be properly administered. In re Daniels , 247 Kan. at 349

.

Our review of the record on appeal confirms that in defending against
Schmitendorf's lawsui t , Taylor and her attorney benefi t t ed the trust estat e so that it could be properly administered

. In particular, Taylor defended Schmitendorf's attack on Park's
2013 amendment to the trust as well as the validity of the F amily S ettlement A greement previously entered to resolve the disputes over the "trust as sets and distributions" as well
as over "future estate matters" that could have led to even more litigation, attorney fees,
and expenses . Under these circumstances, we do not find that the district court abused its discretion in allowing for the payment of Taylor's attorney fees and expenses relating to the defense of this lawsuit to be paid out of trust assets

. In fact, we find the district court's thoughtful decision to be a reasonable

— if not noble

— attempt to bring this unfortunate family dispute to an en d.

Affirm ed

.