1 Pursuant to Local Rule 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-40374

Summary Calender

LIFE INSURANCE COMPANY OF NORTH AMERICA,

Plaintiff

VERSUS

DEBRA MAY GIPSON WALDROP, ET AL,

Defendants

DEBRA MAY GIPSON WALDROP,

Defendant-Appellant

VERSUS

WARD H. THOMAS, JR., AS GUARDIAN AD LITEM FOR

JENNIFER HOHLE, A MINOR, AND BRANDON HOHLE, A MINOR,

Appellee

Appeal from the United States District Court

for the Southern District of Texas

(C-94-CV-308)

October 22, 1996

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM: 1

Debra Mae Hoyle, previously known as Debra May Gipson Waldrop,

appeals the district court’s ref usal to allow her to take2

possession of life insurance proceeds as trustee for her children

Jennifer and Brandon Hohle. We affirm.

Pursuant to a divorce decree, Rodney Hohle, the ex-husband of

Debra Mae Hohle, maintained a life insurance policy apparently

meant to provide for their two children. Rodney Hohle died in

1993. The divorce decree named Debra Hohle “beneficiary as

trustee” of the proceeds, while the insurance enrollment card named

Debra as “beneficiary and trustee for b enefit of Jennifer and

Brandon Hohle.” Plaintiff Life Insurance Company of North America

(“LINA”) brought this int erpleader action because of the

discrepancy in language between the decree and insurance card to

clarify the rights of the potential claimants. The district court

granted the interpleader, and LINA deposited $200,000 in proceeds

with the court.

When LINA brought suit, Debra claimed an interest i n the

proceeds in her individual capacity. For that reason, she asked

the court in her counterclaim and cross claim to appoint a Guardian

Ad Litem for her children. Several pleadings reiterate that Debra

sought the proceeds for herself, and that a conflict might exist

between her interests and those of her children.

Debra moved for summary judgment that she take the insurance

proceeds as trustee for her ch ildren. When she so moved, Debra

submitted an affidavit stating she no longer sought the proceeds in

her individual capacity, but only as trustee for her children.

The district court denied the motion, stating that since Debra3

h ad previously asserted an interest in the proceeds in her

individual capacity, she thereby repudiated her trust relation to

the $200,000. We agree. “[A] person who sues to recover property

for his own right repudiates a trust relation to such property.”

Brault v. Bigham

, 493 S.W.2d 576, 579 (Tex.Civ.App. 1973). As

Debra had previously demonstrated interests adverse to those of her

children, she could no longer properly act in a fiduciary capacity.

Debra’s second point of error is that the district court erred

in not allocating a portion of the proceeds to Debra’s control as

trustee for her children. We disagree. Since Debra forfeited her

right to act as trustee, she was not entitled to control over any

portion of the $200,000 proceeds.

Debra next argues the form of the trust was improper under §

142.005, Texas Property Code. § 142.005 (b)(2) states the trustee

may in his sole discretion distribute amounts for the necessary

“health, education, support, or maintenance of the benefici ary.”

Article IV, Paragraph 2 of the trust permits discretionary

distrib utions. That section instructs the trustee on what to

consider if making distributions: the beneficiary’s standard of

living, his known resources, the ability of the person legally

oblig ated to support the beneficiary, and the ability of the

beneficiary to earn income (except while obtaining education).

Debra claims the language in the trust instructing the trustee

to consider the ability of the person legally obligated to support4

the beneficiary before making distributions could be interpreted to

require her to work. She claims the trustee could reduce

discretionary distr ibutions to force her to work longer hours or

two jobs, and that this par agraph constituted an impermissible

limitation on trust distributions. This argument is without merit.

There is no impermissible limitation on trust distributions because

the trust provides only for discretionary distributions. Debra is

not entitled to any distribution.

Debra then alleges that Code section violates both the U.S.

and Texas Constitutions by denying equal protection and equal

rights to trust recipients. We see no constitutional problems with

the statute.

Debra next contends the guardian ad litem should not have

continued in the case after she disclaimed her interest in the

proceeds by affidavit. Since we find Debra was not entitled to act

a s trustee, it was proper for the guardian ad litem to remain in

the case.

Debra’s final contention is that the attorneys’ fees for the

guardian ad litem approved by the district court were unreasonable

and should not have been paid out of the proceeds. We find no

impropriety in the guardian’s fees, and agree with the district

court that the fees were appropriate.

AFFIRMED.5