In Re: the Elaine Emma Short Revocable Living Trust Agreement, Dated July 17, 1984

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-OCT-2024
07:54 AM
Dkt. 63 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE MATTER OF THE

ELAINE EMMA SHORT REVOCABLE LIVING TRUST
AGREEMENT, Dated July 17, 1984, as amended

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1TR151000165)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and McCullen, JJ.)

This is an appeal from a contested matter in a trust
proceeding. Kristin Linae Cook Kline, Larry Thomas Cook, Cathy
Leann Cook Bornhorst, Susan Kay Cook Galvin, and Jodi Charlene
Cook Bosben (collectively, the Cooks) appeal from the April 6,
2021 "Judgment on the Order Granting Petition for Instructions
Regarding Principal Distributions and Attorneys' Fees, and for
Modification of Trust" entered by the Circuit Court of the First
Circuit, sitting in probate.1 We vacate the Judgment; affirm in
part and vacate in part the March 5, 2021 "Order Granting
Petition for Instructions Regarding Principal Distributions and
Attorneys' Fees, and for Modification of Trust"; and remand for
proceedings consistent with this summary disposition order.

1
The Honorable R. Mark Browning presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

This case is before us a second time. The facts and
procedural history are recited in In re Elaine Emma Short
Revocable Living Tr. Agreement Dated July 17, 1984, No. CAAP-15-
0000960, 2019 WL 2417367 (Haw. App. June 10, 2019) (Short I)
(mem. op.), vacated, 147 Hawai#i 456, 465 P.3d 903 (2020), and In
re Elaine Emma Short Revocable Living Tr. Agreement Dated
July 17, 1984, 147 Hawai#i 456, 465 P.3d 903 (2020) (Short II).
Relevant to this appeal, trustee First Hawaiian Bank (FHB) filed
a petition to modify Elaine Emma Short's Trust. Elaine's son
David Short, the Trust's only surviving primary beneficiary,
supported the petition. The Cooks, claiming to be contingent
remainder beneficiaries, contested the petition. The probate
court granted the petition.2 The Cooks appealed. We affirmed in
part and reversed in part. The Cooks applied for certiorari.
The supreme court accepted the application.
The probate court had not entered findings of fact.
The supreme court stated that without findings of fact, it was
"not able to meaningfully review the probate court's Order"
granting FHB's petition. Short II, 147 Hawai#i at 467, 465 P.3d
at 914. The supreme court noted the probate court didn't issue
an order retaining the case (required by Hawai#i Probate Rules
(HPR) Rule 20), depriving the parties of "an opportunity under
HPR Rule 20(d) to request that the probate court adopt [Hawai#i
Rules of Civil Procedure (HRCP)] Rule 52 and render findings of
fact[.]" Id. at 469, 465 P.3d at 916. The supreme court also
noted the judge who presided over FHB's petition was not
available on remand, and a successor judge could not enter
findings of fact in a case tried before a predecessor judge. Id.
at 471 n.30, 465 P.3d at 918 n.30 (citing Hana Ranch, Inc. v.
Kanakaole, 66 Haw. 643, 649-50, 672 P.2d 550, 554 (1983)). The
supreme court remanded the contested matter to the probate court
"for further proceedings consistent with [its] opinion." Id.

2
The Honorable Derrick H.M. Chan presided.

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

FHB filed a renewed Petition with the probate court on
September 29, 2020. The court set a hearing on the Petition for
December 17, 2020. The Cooks objected to the Petition on
October 29, 2020. This created a contested matter. See HPR
Rule 19. The probate court heard the Petition on December 17,
2020, without entering an HPR Rule 20 order retaining the case.
A minute order retaining the contested matter, granting the
Petition, and denying the Cooks' request for payment of their
attorneys' fees from the Trust was entered on January 4, 2021.
Findings of fact and conclusions of law were entered on March 5,
2021. The "Order Granting Petition for Instructions Regarding
Principal Distributions and Attorneys' Fees, and for Modification
of Trust" was also entered on March 5, 2021. The Judgment was
entered on April 6, 2021. This appeal followed.
The statement of the points of error in the Cooks'
opening brief fails to comply with Hawai#i Rules of Appellate
Procedure (HRAP) Rule 28(b)(4). The Cooks contend the probate
court erred by modifying the Trust, making findings of disputed
fact without conducting an evidentiary hearing, and denying
payment of their attorneys fees from Trust principal. Their
points fail to include "a quotation of the finding or conclusion
urged as error or reference to appended findings" as required by
HRAP Rule 28(b)(4)(C). Ordinarily, "unchallenged factual
findings are deemed to be binding on appeal[.]" Okada Trucking
Co. v. Bd. of Water Supply, 97 Hawai#i 450, 459, 40 P.3d 73, 82
(2002). For the reasons explained below, however, we need not
address the probate court's findings of fact to decide this
appeal.
(1) The Cooks argue the probate court found certain
declarants to be "credible and persuasive" and others "not
credible or persuasive" without holding "an evidentiary hearing
to fairly resolve these disputed issues of material fact[.]"
Ordinarily, "an appellate court will not pass upon issues
dependent upon the credibility of witnesses and the weight of
evidence; this is the province of the trier of fact." Fisher v.

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Fisher, 111 Hawai#i 41, 46, 137 P.3d 355, 360 (2006) (citation
omitted). We need not address the credibility determinations
because the probate court didn't follow the mandate of Short II.
The probate court retained the contested matter but did
not enter a written HPR Rule 20(a) order until after the
December 17, 2020 hearing, when it granted FHB's Petition. In
the last appeal the supreme court stated:

the probate court in this case did not comply with the
probate rules when it failed to issue an order retaining the
case and, because there was no order of assignment, failed
to specifically afford the parties the ability to request
that the Hawai#i Rules of Civil Procedure and/or the Rules
of the Circuit Courts be applicable in the contested matter.

Short II, 147 Hawai#i at 471 n.28, 465 P.3d at 918 n.28; see
also, In re Est. of Campbell, 106 Hawai#i 453, 460 n.16, 106 P.3d
1096, 1103 n.16 (2005) (discussing that once an HPR Rule 20(a)
order is entered, "the court then has the opportunity to decide
what procedures will be used if the contested matter is retained"
(emphasis added)). Those rules include not only HRCP Rule 52
(findings by the court) mentioned by the supreme court, Short II,
147 Hawai#i at 468, 465 P.3d at 915, but also Rules 39(b) (trial
by the court) and 56 (summary judgment). This structural error
was a departure from the supreme court's mandate, and requires
another remand of the contested matter.
(2) When this case was first before us, David cross-
appealed from the probate court's order allowing the Cooks'
attorneys' fees and costs to be paid from Trust principal. We
held the probate court abused its discretion by granting the
Cooks' request for attorneys' fees and costs to be paid from
Trust principal. Short I, 2019 WL 2417367, at *11. On
certiorari, the Cooks argued that we gravely erred. Short II,
147 Hawai#i at 464, 465 P.3d at 911. The supreme court did not
address the fee issue, but it vacated our judgment on appeal
except for one issue unrelated to the appeal now before us. The
supreme court also vacated the probate court's judgment and
order, including the grant of the Cooks' request for attorneys'

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

fees and costs to be paid from Trust principal. Id. at 475, 465
P.3d at 922. We conclude there is no law of the case on this
issue, which arises independent of the probate court's failure to
enter an HPR Rule 20(a) order.
We review the probate court's denial of the Cooks' fee
request for abuse of discretion. In re Tr. Agreement Dated
June 6, 1974, 145 Hawai#i 300, 309, 452 P.3d 297, 306 (2019).
Conclusions of law are reviewed de novo. Fisher, 111 Hawai#i at
46, 137 P.3d at 360. The probate court concluded:

22. The Hawai#i Supreme Court has held that
attorneys' fees and costs for a contingent beneficiary are
not properly payable from the trust estate. See Von Holt v.
Williams, 23 Haw. 245 (1916) ("It is well established that
fees of counsel for a litigant whose interest is contingent
cannot be allowed out of the trust fund[.]"). Contingent
remainder beneficiaries are members of a class living at a
particular time that cannot be ascertained until the
occurrence of a future event. See, e.g., Carter v. Davis,
18 Haw. 439, 444-45 (1907).

23. In Von Holt, the testator's granddaughter was
the residuary beneficiary of the estate and a contingent
beneficiary of the income of the estate. Even though she
was a residuary beneficiary of the Trust, the Hawai#i
Supreme Court denied the payment of her attorneys' fees from
the principal of the trust. 23 Haw. 245. Here, the [Cooks]
have a lesser interest than that discussed in Van Holt; they
have merely a contingent interest in the Trust. See Short,
147 Hawai#i at 472, 465 P.3d at 919. Under the terms of
this Trust, the remainder beneficiaries are unascertained
until the termination of the Trust, or David's death. The
[Cooks] will have an interest in the Trust only if all of
the following conditions are met: (1) David does not have
any issue, either adopted or legitimate, at his death,
(2) the purported contingent remainder beneficiary is alive
at David's death, and (3) the individual is determined by
the laws of the State of Hawai#i in force at David's death,
to be one of [Elaine]'s heirs at law. Following Van Holt,
the payment of attorneys' fees and costs for the [Cooks]
relating to the 2015 Petition, the appeal of the 2015
Petition, and this Petition, are not properly payable from
the Trust.
24. In addition, a beneficiary may be awarded
attorneys' fees and costs from a trust or estate only where
the beneficiaries' participation in the case advances the
interest of all beneficiaries. See In re Campbell's Estate,
46 Haw. 475, 522, 382 P.2d 920, 953 (1963); Bishop Trust Co.
v. Cooke Trust Co., 39 Haw. 641, 651 (1953); Von Holt v.
Williamson, 23 Haw. 245, 248 (1916). In the instant case,
this Court concludes that the [Cooks'] position was self-
serving and clearly did not benefit the interests of all
beneficiaries. Accordingly, the [Cooks'] request for
attorneys' fees and costs is denied.

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

"It is well established that fees of counsel for a
litigant whose interest is contingent cannot be allowed out of
the trust fund[.]" Von Holt v. Williamson, 23 Haw. 245, 248-49
(Haw. Terr. 1916). The Cooks are at most contingent remainder
beneficiaries of Elaine's Trust. Article V.B.(b) of Elaine's
trust agreement, as amended on March 10, 1993, provides in
relevant part:

if neither of [Elaine]'s said sons is living [when Elaine
dies], all of the aforesaid trust property shall be
distributed to [Elaine]'s heirs at law, determined by the
laws of the State of Hawaii in force at such time.

Article V of the trust agreement provides:

C. Upon [Elaine]'s death, if neither [Elaine]'s
spouse CLARENCE RAYMOND SHORT nor any of [Elaine]'s
descendants survive [Elaine], then at such time [FHB] shall
dispose of all of the then remaining residuary trust estate
under Article VIII hereinbelow.

Article VIII provides:

If, at any time, the foregoing provisions do not
provide persons qualified to take the trust estate, then the
trust estate shall be distributed to those persons who would
constitute the heirs-at-law of [Elaine] as then determined
under, and in the proportions then provided by, the laws of
the state of [Elaine]'s domicile at the date of [Elaine]'s
death relating to descent and distribution of property, the
same in all respects as though [Elaine]'s death had occurred
at the time that such assets became subject to distribution
under this Article.

The Cooks are not named as beneficiaries in the Trust
or the amendment. As contingent beneficiaries at most, their
attorneys fees "cannot be allowed out of the trust fund[.]" Von
Holt, 23 Haw. at 248-49.
The Cooks cite Bishop Trust Co. v. Jacobs, 36 Haw. 686
(Haw. Terr. 1944) (Jacobs II). Jacobs II was an appeal from an
award of attorneys fees to parties involved in a dispute over
distribution of trust income reported in Bishop Trust Co. v.
Jacobs, 36 Haw. 314 (Haw. Terr. 1942) (Jacobs I). The litigants
in Jacobs I were the income beneficiary (the settlor's daughter)
6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

and three of the named remainder beneficiaries (the settlor's
daughter being the fourth remainder beneficiary with a 5/8
share). The remainder beneficiaries lost Jacobs I, but were
awarded their attorney's fees. The fee award was affirmed in
Jacobs II. The remainder beneficiaries there were vested, not
contingent, so Von Holt did not apply.
The Cooks also cite Valentin v. Brunette, 26 Haw. 498
(Haw. Terr. 1922). The facts underlying that case were reported
in Valentin v. Brunette, 26 Haw. 417 (Haw. Terr. 1922). There,
the income and remainder beneficiaries of a trust disputed
whether certain expenses were to be paid from trust income or
principal. All parties' attorneys were awarded their fees. The
remainder beneficiaries in that case (the descendants of John
Ena's children) were vested, not contingent. Again, Von Holt did
not apply.
An exception to the general rule that a party must bear
their own attorneys fees is when the party advances "the
interests of all the beneficiaries of a trust[.]" In re Estate
of Campbell, 46 Haw. 475, 522, 382 P.2d 920, 953 (1963) (emphasis
added). For example, if a "beneficiary successfully maintains an
action to recover or preserve the trust property for the benefit
of all the beneficiaries[,] . . . costs and expenses may be
allowed such beneficiary out of the principal of the trust
fund[.]" Von Holt, 23 Haw. at 248. Here, the Cooks tried to
advance their own interests, which were opposed to those of
David, the primary trust beneficiary. "[T]he litigation must be
in advancement of, and not in opposition to, the interest of all
the beneficiaries or no allowance of counsels' fees out of the
trust fund will be made." Id. (emphasis added).
The probate court applied the correct Hawai#i law. It
did not abuse its discretion by following the law and denying
attorneys fees to the Cooks.
For these reasons, the April 6, 2021 "Judgment on the
Order Granting Petition for Instructions Regarding Principal
Distributions and Attorneys' Fees, and for Modification of Trust"

7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

is vacated; the March 5, 2021 "Order Granting Petition for
Instructions Regarding Principal Distributions and Attorneys'
Fees, and for Modification of Trust" is affirmed only as to the
denial of the Cooks' request for attorneys fees, and is otherwise
vacated; and this case is remanded to the probate court for
proceedings consistent with this summary disposition order. On
remand, the probate court may assign the contested matter to the
circuit court civil trials calendar under HPR Rule 20(b) if the
probate court considers it appropriate.
DATED: Honolulu, Hawai#i, October 24, 2024.

On the briefs:
/s/ Keith K. Hiraoka
Thomas E. Bush, Presiding Judge
for Respondents-Appellants
Kristin Linae Cook Kline, /s/ Clyde J. Wadsworth
Larry Thomas Cook, Cathy Associate Judge
Leann Cook Bornhorst,
Susan Kay Cook Galvin and /s/ Sonja M.P. McCullen
Jodi Charlene Cook Bosben. Associate Judge

Calvert G. Chipchase,
Summer G. Shelverton,
Caitlin M. Moon,
for Respondent-Appellee
David Short.

Rosemarie S.J. Sam,
Deirdre Marie-Iha,
for Petitioner-Appellee
First Hawaiian Bank.

8