RENDERED: MARCH 10, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-0643-MR

KEVIN A. MCKIM AND THERESA 

SMITH APPELLANTS 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE JESSICA E. GREEN, JUDGE

ACTION NO. 21-CI-000103

MARY K. MCKIM; KAYLA M. 

MCKIM; AND MADISON E. MCKIM APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; DIXON AND LAMBERT, JUDGES.

DIXON, JUDGE: Kevin A. McKim and Theresa Smith appeal the order of the

Jefferson Circuit Court, entered May 26, 2021, dismissing the underlying action to 

invalidate the modification of the Kevin A. McKim Gift Trust (hereinafter “Trust”) 

and for other related relief. After careful review of the briefs, record, and law, we 

affirm. 
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BACKGROUND FACTS AND PROCEDURAL HISTORY

Kevin and Mary K. McKim were married in 1992, and Kayla M. 

McKim and Madison E. McKim are their daughters. In 2005, Kevin established an 

irrevocable trust for the benefit of Mary, his children, and his future grandchildren. 

The original trust instrument names Mary as trustee and charges her with using 

income from Trust property to provide, as she deems advisable, for the 

beneficiaries’ “support in their accustomed manners of living and for their 

maintenance, health[,] and education.” Trust article 2.1(a). Presently, only Mary, 

Kayla, and Madison are beneficiaries to the Trust. Under articles 2.4 and 3.4 of the

original trust instrument, the Trust terminates in favor of separate trusts for Kevin’s

children, with Theresa Smith as trustee, upon either the McKims’ divorce or 

Mary’s death. Kevin contends that, in effect, Mary would be removed as both 

trustee and beneficiary. 

In December 2018, Kevin filed for divorce; that case is still pending. 

On July 16, 2020, Mary executed a trust decanting modification agreement 

pursuant to KRS1 386.175. The modified agreement removed the provisions that 

would terminate the Trust upon the McKims’ divorce – permitting Mary to retain 

her status as both trustee and beneficiary – and removed and replaced Theresa as a 

named successor trustee. 

1

 Kentucky Revised Statutes. 
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On January 7, 2021, Kevin filed the underlying complaint which was 

amended on February 15, 2021, to include Theresa as a plaintiff. Therein, Kevin:

(1) sought a declaration that the modification agreement is invalid and the terms of 

the original trust instrument remain in effect, (2) asserted Mary breached her 

fiduciary duties, resulting in damage to Appellants, the Trust, and its beneficiaries, 

and (3) alleged various violations of Kentucky trust statutes. Pursuant to CR2

12.02(f), Mary moved to dismiss, arguing: (1) Appellants lacked standing; (2) the 

claims should have been raised in district, not circuit, court;

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and (3) Kevin’s 

claims are barred by equitable estoppel. After briefing and oral arguments, the 

court granted the motion on all grounds, and this appeal followed. 

STANDARD OF REVIEW

CR 12.02(f) authorizes judgment in favor of a defendant for a 

plaintiff’s “failure to state a claim upon which relief can be granted[.]” When 

considering a motion to dismiss, the court should view the pleadings “in a light 

most favorable to the plaintiff and accept all allegations in the complaint as true.” 

Cotton v. Nat’l Collegiate Athletic Ass’n, 587 S.W.3d 356, 361 (Ky. App. 2019) 

(quoting Mims v. Western-Southern Agency, Inc., 226 S.W.3d 833, 835 (Ky. App. 

2

 Kentucky Rules of Civil Procedure. 

3

 Appellants concede that the removal of a trustee is the sole provenance of the district court, but

they nonetheless contend this isolated error did not preclude the circuit court from acquiring 

subject matter jurisdiction over their remaining claims. 
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2007)). “Since a motion to dismiss for failure to state a claim upon which relief 

may be granted is a pure question of law, a reviewing court owes no deference to a 

trial court’s determination; instead, an appellate court reviews the issue de novo.” 

Id. (quoting Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010)). 

LEGAL ANALYSIS

Appellants first challenge the court’s determination that they do not 

have standing. Pursuant to § 112(5) of the Kentucky Constitution, which limits the 

court’s jurisdiction to “justiciable causes,” a plaintiff must have constitutional 

standing to initiate a lawsuit in the Commonwealth. Commonwealth, Cabinet for 

Health and Family Servs., Dep’t for Medicaid Servs. v. Sexton, ex rel. Appalachian 

Reg’l Healthcare, Inc., 566 S.W.3d 185, 196 (Ky. 2018). To satisfy this 

requirement, the plaintiff must demonstrate an injury, caused by the defendant, that 

is capable of being redressed by the court. Id. Moreover, the injury must be 

concrete and particularized, as well as actual or imminent. Id. (citing 

Massachusetts v. E.P.A., 549 U.S. 497, 517, 12 S. Ct. 1438, 167 L. Ed. 2d 248 

(2007)). With these principles in mind, we will address Appellants’ arguments, in 

turn. 

Kevin’s claimed injury is that, by permitting Mary to remain as trustee 

even upon their divorce, the modification agreement exposes him to a perpetual tax 
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burden4that the initial trust instrument was explicitly designed to avoid. In 

support, Kevin cites City of Louisville v. Stock Yards Bank & Trust Co., 843 

S.W.2d 327 (Ky. 1992), wherein the Court held that increased economic outlays 

resulting from the trustees’ alleged mismanagement of funds was a sufficiently 

cognizable injury to support standing for the grantor, even though the trustees had 

exclusive title to the trust assets by statute. Reasoning that Kevin’s continuing 

duty to pay taxes was distinguishable from the future duty imposed in City of 

Louisville, the court rejected Kevin’s contention. As we agree Kevin does not have 

a requisite injury to support standing, we affirm, albeit on different grounds. See 

Fischer v. Fischer, 348 S.W.3d 582, 591-92 (Ky. 2011) (citing Kentucky Farm 

Bureau Mut. Ins. Co. v. Shelter Mut. Ins. Co., 326 S.W.3d 803, 812 n.3 (Ky. 2010)

wherein the court held that we are permitted to affirm on any grounds supported by 

the record). 

Accepting arguendo that an increased tax burden is a sufficiently 

particularized injury, the harm must also be actual or imminent. Here, Kevin 

admits the triggering event – the dissolution of the parties’ marriage – has yet to 

occur, and it is not claimed that Kevin has incurred any undue taxation. 

Accordingly, we must determine whether this unrealized injury is sufficiently 

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 Specifically, Kevin states that, by virtue of sections 672(e) and 674 of the Internal Revenue 

Code, he is required to pay income taxes incurred by the Trust so long as Mary remains trustee. 
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imminent to confer standing. Relying on the Court’s interpretation of the term in

Overstreet v. Mayberry, 603 S.W.3d 244, 252 (Ky. 2020), Kevin maintains his 

injury qualifies as such given that the dissolution is reaching its conclusion and the

modification agreement has already removed the tax saving measures. 

In Overstreet the Court explained: 

For an injury to be concrete, it must actually exist. And 

while an injury may be threatened or imminent, the 

concept of imminence cannot be stretched beyond its 

purpose, which is to ensure that the alleged injury is not 

too speculative for [constitutional standing] purposes –

that the injury is certainly impending. Thus, the United 

States Supreme Court has repeatedly reiterated that 

threatened injury must be certainly impending to 

constitute injury in fact and that allegations of possible

future injury are not sufficient. 

Id. (internal quotation marks and citations omitted) (emphasis in original). 

Though Kevin insists a decree dissolving his marriage – thereby

causing his injury – is imminent, the fact that two years have elapsed since the 

underlying petition was filed, and the dissolution action is unresolved with no date 

certain to conclude, plainly stretches the definition of word. Furthermore, it is 

conceivable that a decree will not be entered for a myriad of reasons; or that, prior 

thereto, the trust agreement will be further modified to prevent the feared tax 

liability, as Mary purports to have done during the pendency of this appeal; or the 

remaining triggering event may occur nullifying the entire conflict. Hence, we 
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conclude Kevin has failed to demonstrate that the injury is certainly impending; 

thus, the court’s determination that he lacked standing is not erroneous. 

As for Theresa, her claim to standing arises from her status as a 

named successor trustee in the original trust instrument and the plain language of 

the Uniform Trust Code (“UTC”), codified at KRS 386B.1-010 - 386B.11-050. 

Specifically, KRS 386B.4-100(2) provides that “[a] proceeding to approve or 

disapprove a proposed modification or termination under [various provisions of the 

code] may be commenced by a trustee[.]” “Trustee” is defined by the UTC as 

including “an original, additional, and successor trustee, and a cotrustee.” KRS

386B.1-010(21). Additionally, a “court may intervene in the administration of a 

trust to the extent its jurisdiction is invoked by an interested person or as provided 

by law.” KRS 386B.2-010(1). 

Mary disagrees, arguing that any standing Theresa – as a mere

contingent successor trustee – may have held was lost when she was duly replaced 

prior to the occurrence of the condition for her appointment. Furthermore, Mary

asserts that Theresa’s reliance on the UTC is misplaced as no authority supports 

her interpretation, and the modification was made pursuant to the decanting statute, 

KRS 386.175, which is not a part of the UTC. 

The UTC was enacted in 2014, and there is little by way of judicial 

guidance. We acknowledge that Theresa’s argument has some appeal under a 
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plain reading of the text. However, the law is clear that statutory standing is not a 

substitute for constitutional standing (see Sexton, 566 S.W.3d at 191), and because 

we conclude that Theresa has failed to demonstrate the latter, we must affirm.

Here, accepting arguendo that Theresa’s removal as a future trustee is 

a concrete injury, the harm is neither actual nor imminent. Per sections 3.3 and 3.4 

of the original trust instrument, Theresa would be appointed trustee if: (1) any 

trustee ceases to act during Mary’s lifetime and Mary does not appoint another, (2) 

the children are under 35 years of age and the McKims have divorced, or (3) the 

children are under 35 years of age and Mary is deceased. Though Theresa asserted 

in her petition that she “should be serving as trustee at this time or in the 

immediate future,” it is undisputed that none of the prerequisites for her 

appointment occurred either at the time of filing or in the intervening two years

since. For the reasons addressed above, we conclude there is an insufficient basis 

to accept that one of the conditions is certainly impending. Consequently, we 

agree with the trial court that Theresa has also failed to establish her standing to 

bring the underlying action. 

Our conclusion is not undermined by Theresa’s citation to Matter of 

Trust of Hildebrandt, 388 P.3d 918 (Kan. Ct. App. 2017), and Megiel-Rollo v. 

Regiel, 162 So.3d 1088 (Fla. Dist. Ct. App. 2015). While Theresa asserts that

these courts, under identical provisions of the UTC, held that successor trustees 
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had standing to challenge a trust modification and to seek reformation of a trust, 

these cases are not binding on this Court and, more importantly, they are 

distinguishable. In Hildebrandt, the party at issue had a present claim of 

entitlement to appointment as trustee, the condition necessary therefor having 

already occurred, and the litigation was to settle who the proper trustee was. In 

Regiel, the appealing party was the current trustee. As stated above, Theresa has 

neither a claim for appointment nor is she the present trustee. 

We are, likewise, unpersuaded by Theresa’s general assertion that 

“courts routinely recognize the standing of parties with contingent interest in a 

trust to challenge the trust’s administration” as a basis to find standing in this 

matter. Though Theresa refers us to Betty G. Weldon Revocable Trust ex rel. 

Vivion v. Weldon ex rel. Weldon, 231 S.W.3d 158 (Mo. Ct. App. 2007), in support 

of her position, this reliance is misplaced. At issue in Weldon was the standing of 

residuary beneficiaries, and the court therein affirmatively concluded that the

appealed judgment affected the litigants’ personal interest in the corpus of the trust. 

Conversely, as a mere future trustee, Theresa does not have a comparable interest. 

As we have upheld the court’s determinations that Appellants lack 

standing, we need not reach the merits of their remaining claims on appeal. 
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CONCLUSION

Therefore, and for the foregoing reasons, the order of the Jefferson 

Circuit Court is AFFIRMED. 

ALL CONCUR.

BRIEFS FOR APPELLANTS:

Clark C. Johnson

Burt A. Stinson

Louisville, Kentucky 

BRIEF FOR APPELLEES:

Daniel M. Oyler

Edward H. Bartenstein

Louisville, Kentucky