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In re Arthur & Mary Jane Lavery Living Trust

Court of Appeals of Arizona, First Division

December 10, 2013

In re the Matter of: ARTHUR AND MARY JANE LAVERY LIVING TRUST DATED OCTOBER 31, 1997, AS AMENDED AND RESTATED ON MAY 28, 1998.
v.
MAUREEN GORMAN, individually and on behalf of Mary Jane Lavery, Respondent/Appellee. MICHAEL A. LAVERY, as Trustee of the ARTHUR AND MARY JANE LAVERY LIVING TRUST, Petitioner/Appellant,

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. PB2012-001207 The Honorable Richard L. Nothwehr, Judge Pro Tempore

WARNER ANGLE HALLAM JACKSON & FORMANEK PLC, Larry C. Schafer Phillip B. Visnansky Counsel for Petitioners/Appellants

Joe M. Romley, Esq., Counsel for Respondent/Appellee

Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge Patricia K. Norris joined.

MEMORANDUM DECISION

THUMMA, Judge

¶1 This is an appeal from the superior court's dismissal of a verified petition for approval of trust accounting filed by petitioner Michael Lavery as trustee of four trusts. Michael claims the court erred in granting a motion to dismiss filed by trust beneficiary Maureen Gorman, individually and on behalf of trust beneficiary Mary Jane Lavery, arguing a lack of subject matter and personal jurisdiction. Because Maureen presented no evidence to counter Michael's verified factual showing, the order of dismissal is reversed and this matter is remanded for further proceedings.

FACTS[1] AND PROCEDURAL HISTORY

¶2 Created in 1977, the Arthur and Mary Jane Lavery Living Trust has been restated and amended several times. After Arthur died in 1998, the Trust was divided into four separate trusts. As relevant here, Michael and David Daze are co-trustees of three of the trusts while Michael and James Daze are co-trustees of the fourth trust.

¶3 No trust documents are included in the record. The parties, however, apparently do not dispute that the trusts are governed "by the laws of California" unless otherwise provided in the trust documents and "[t]he provisions of the California Probate Code relating to living trusts shall be applicable" to the trusts. It also appears undisputed that the trust documents do not specify the principal place of administration for the trusts.

¶4 For many years, California was the principal place of administration for the trusts. According to the verified petition, at some point prior to May 2012, Arizona became the principal place of administration for the trusts. The verified petition states Michael, David Daze and James Daze have accepted their appointment as trustees. The verified petition also states the beneficiaries have accepted distributions from the trusts, thereby submitting to the jurisdiction of Arizona courts.

¶5 Michael is a resident of Arizona. David Daze and James Daze are California residents as is beneficiary Mary Jane Lavery. Beneficiary and appellee Maureen Gorman is a Pennsylvania resident.

¶6 In May 2012, Michael filed a petition for approval of first accounting for the trusts in Arizona superior court, seeking an order "[a]pproving and settling" the first accounts for the four trusts for the period January 1, 2011 through December 31, 2011 and discharging the trustees from "any and all liability associated with transactions" during that period. In response, beneficiary Maureen Gorman (daughter of Arthur and Mary Jane Lavery and Michael's sister) filed a motion to dismiss on her own behalf and on behalf of beneficiary Mary Jane Lavery, asserting a lack of subject matter and personal jurisdiction, and alternatively requesting the action be transferred to Ventura County California Superior Court. [2]

¶7 Maureen did not request an evidentiary hearing, did not seek discovery and did not submit any evidence (as opposed to legal argument) supporting her motion. From an evidentiary perspective, the only factual material properly before the superior court in addressing the motion was the verified petition and Michael's verified response to Maureen's motion. On this record, following full ...


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