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NOT DESIGNATED FOR PUBLICATION

No. 120,865

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

KAREN SCHMITENDORF,

Appellee/Cross-Appellant,

v.

DEBORAH TAYLOR, as Trustee of 

the V. LOUISE PARK REVOCABLE LIVING TRUST; and

DEBORAH TAYLOR, Individually,

Appellants/Cross-Appellees.

MEMORANDUM OPINION

Appeal from Douglas District Court; JAMES R. MCCABRIA, judge. Opinion filed June 19, 2020. 

Affirmed. 

Geri L. Hartley, of Paola, for appellants/cross-appellees.

Jeffrey R. King, of Sage Law LLP, of Overland Park, for appellee/cross-appellant.

Before BRUNS, P.J., GREEN, J., and TIMOTHY J. CHAMBERS, District Judge, assigned.

PER CURIAM: 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 for attorney fees filed by the parties. Thus, 

we affirm.
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PROCEDURAL HISTORY 

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 Family Settlement Agreement 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 attorney fees and expenses. Prior to the district court's granting of summary judgment, 

Schmitendorf requested that Taylor be prevented from paying her attorney fees and 

expenses out of the trust assets. Schmitendorf also asked that the district court require 

Taylor to reimburse the trust for any funds already paid. In the alternative, Schmitendorf 

sought to have the district court authorize the payment of her attorney fees and expenses 

from trust assets. Later, after 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 [filed 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. And 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."
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Thereafter, Taylor filed a timely notice of appeal from the district court's order, 

and Schmitendorf filed a timely notice of cross-appeal. 

ANALYSIS

Failure to Assess Attorney Fees Against Schmitendorf

Taylor contends that the 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 costs 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) (award 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 only 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 judicial 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 "are experts as to the reasonableness of attorneys' fees and may, 

in the interest of justice, fix counsel fees when in disagreement with views of the trial 

judge." In re Somers, 277 Kan. at 773. In a case involving a trust, an award of attorney 
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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, legal proceedings benefit a trust estate if questions are resolved so the estate can be 

properly administered. In re Trusteeship of the Will of Daniels, 247 Kan. 349, 357, 799 

P.2d 479 (1990). 

Here, on November 20, 2018, the district court conducted a hearing on the issue of 

attorney fees. The district court took the matter under advisement and requested that 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 paid 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 setting 

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 the 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 attorney 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 district court to make 
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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 Schmitendorf 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 proceedings 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, legal 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 lawsuit, Taylor and her attorney benefitted the trust estate 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 Family Settlement Agreement

previously entered to resolve the disputes over the "trust assets 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 end. 

Affirmed.