Attempt to obtain alimony & child support arrearages; Interpretation of a trust agreement; Discretionary trusts; MCL 700.7103(d); In re Johannes Trust; Support trusts; Miller v. Department of Mental Health; Distinguishing between discretionary trusts, support trusts, & spendthrift trusts; In re Hertsberg Inter Vivos Trust; Good v. Armstrong; Coverston v. Kellogg; “Shall”; Wilcoxon v. Detroit Election Comm’n; Determining the settlor’s intent; In re Herbert; In re Kostin; Public policy; Duty to support; Malnar v. Malnar

The court held that the probate court did not err by denying petitioner’s petition for distribution from the trust at issue in this case. She sought to compel respondents-successor co-trustees to make income distribution payments to her ex-husband (A), out of which she could then seek payment of A’s child support and alimony arrearages. On appeal, the court rejected her argument that the probate court erred in denying her petition for distribution based on a finding that the trust is a purely discretionary trust, and that she was not entitled to compensation for A’s outstanding child support and alimony arrearages out of income distributions made to him from the trust. “[I]t is apparent that the use of the word ‘shall’ was not intended to mandate that respondents authorize income distributions to [A], from which petitioner could recover child support and alimony arrearages. Instead, it appears that the words ‘sole and absolute discretion’ give respondents the right to use their discretion when deciding whether to make distributions to” A. It found that the trust provisions at issue gave “respondents discretion to determine whether to distribute the income and principal of the trust to its beneficiaries, including [A], as contemplated in MCL 700.7103(d).” As such, it concluded that the trust was discretionary, and that, because it was discretionary, “creditors, including petitioner, cannot reach the trust assets.” The court also rejected her claim that public policy supported the argument that she should be compensated for A’s child support and alimony arrearages via income distributions from the trust, noting that “because the trust is a discretionary trust, and not a spendthrift trust, petitioner’s argument must fail.” Affirmed.