Daniel B. Dorn, in his capacity as the Parent and Natural guardian of E.D., R.D., and Y.D., Appellant,
Paul S. Cohen and Susan Cohen, Individually and in their capacity as the Co-Conservators of the person of Abbie Ilene Dorn, a protected person and ward, and in their capacity as Co-Trustees of the Abbie Dorn Special Needs Trust, Respondents. Paul S. Cohen, M.D. and Susan Cohen, Respondents,
E.D., R.D., and Y.D., The Living Issue of Abbie Ilene Dorn, and the South Carolina Department of Health and Human Services, Respondents below, Of whom E.D., R.D., and Y.D., The Living Issue of Abbie Ilene Dorn are the Appellants, and The South Carolina Department of Health and Human Services is a Respondent. In Re: The Abbie Dorn Special Needs Trust Appellate Case No. 2015-000659
May 11, 2016
From Horry County Deadra L. Jefferson, Circuit Court Judge
A. Massalon and Christy Ford Allen, both of Wills Massalon
& Allen LLC, of Charleston, for Appellants Daniel B.
Dorn, E.D., R.D., and Y.D.
Scott Slotchiver, of Slotchiver & Slotchiver, LLP, of
Charleston, for Appellant Daniel B. Dorn.
Kachmarsky, of Law Office of John Kachmarsky, of Charleston,
as Court Appointed Attorney and Guardian ad Litem for
Appellants E.D., R.D., and Y.D.
Rodman Boyd, III and Bret Harlan Davis, of Davis & Boyd,
LLC, of Myrtle Beach, for Respondents Paul S. Cohen and Susan
Lynette Rogers Hedgepath, of the Hedgepath Law Firm, PA, of
Conway, as Court Appointed Attorney for Abbie Ilene Dorn.
Virginia Lee Moore, of Moore Johnson & Saraniti Law Firm,
PA, of Surfside Beach, as Court Appointed Guardian ad Litem
for Abbie Ilene Dorn.
Boland Reibold, of the South Carolina Department of Health
and Human Services, of Columbia, for Respondent South
Carolina Department of Health and Human Services.
Bernard Dorn and E.D., R.D., and Y.D. (collectively,
Appellants) appeal the circuit court's order dismissing
as not immediately appealable their appeal of the probate
court's order adding a party after the conclusion of
Dorn's case-in-chief. Appellants contend the probate
court's order, which added Abbie Ilene Dorn (Abbie) as a
party to Dorn's petition to remove Abbie's parents,
Paul S. Cohen, M.D. and Susan Cohen (collectively, the
Cohens), as the coconservators and cotrustees of the Abbie
Dorn Special Needs Trust (the Trust), was immediately
appealable because it affected Dorn's substantial right
to name his own defendant and to control the presentation of
evidence at trial. We affirm the circuit court's order.
and Abbie began trying to conceive a child after marrying in
2002. Despite difficulty, Abbie conceived triplets and
delivered E.D., R.D., and Y.D. (collectively, Children) at
Cedars-Sinai Medical Center (Cedars-Sinai) in Los Angeles,
California on June 21, 2006. During delivery, Abbie suffered
catastrophic injuries that left her incapacitated.
through Dorn and her guardian ad litem, brought and settled a
medical malpractice claim against Cedars-Sinai for $6, 730,
000. The settlement funded the Trust through a one-time
contribution of $910, 275.20. The balance of the
settlement funded the purchase of a $4, 333, 105 annuity,
which was to provide periodic payments of $31, 000 per month
to the Trust over the remainder of Abbie's life. The
amount of the annuity payments to the Trust was set to
increase annually at a rate of 3.5%.
Trust named Abbie as its sole primary beneficiary and
Children as remainder beneficiaries after Abbie's
death. The Trust named the Cohens as cotrustees.
Trust empowered the Cohens to employ professionals, including
attorneys, for estate administration purposes and to
represent Abbie in legal matters. The Trust made compensation
of the attorneys hired on Abbie's behalf contingent on
Cohens moved to California to care for Abbie so she could
remain close to Children; however, after learning Abbie was
unlikely to secure daily visitation with Children, the Cohens
returned with Abbie to their home in Horry County. On April
1, 2008, the Horry County Probate Court transferred
jurisdiction over the Trust from Kern County, California to
informed the Cohens he wanted a divorce, and they brought a
marital dissolution action on Abbie's behalf in
California in 2008. The California family court bifurcated
the action and entered an order dissolving Dorn and
Abbie's marriage on September 11, 2008. The California
family court decided the custody, visitation, and child
support portions of Dorn and Abbie's divorce nearly three
years later in April 2011.
November 2010, Dorn filed an emergency petition on
Children's behalf to remove the Cohens as the Trust's
cotrustees and sought a temporary restraining order (TRO) to
prevent the Cohens from spending Trust money on anything
other than Abbie's medical needs. Dorn alleged the Cohens
abused their fiduciary responsibilities, violated the
Trust's terms, and spent a substantial portion of the
Trust's corpus on litigating the visitation portion of
Dorn and Abbie's divorce. Dorn also sought repayment of
all Trust funds associated with litigating the California
days later, the Cohens filed a petition to affirm $495,
326.75 in legal fees paid by the Trust and to reform the
Trust's terms. The Cohens alleged the Trust's terms
created a logistical impracticability by requiring them to
obtain court approval before paying attorney's fees. The
Cohens maintained the Trust empowered them to incur and pay
legal fees on Abbie's behalf; further, the Cohens sought
permission to pay future legal fees with Trust funds.
probate court held a TRO hearing on December 15, 2010, and
denied Dorn's request for a TRO. The probate court
believed there was some question as to whether the Cohens
were authorized to pay legal fees with Trust funds and
thought Dorn's and the Cohens' petitions should be
heard together in a single trial. Dorn stated he had no