In re Waldron

910 S.W.2d 837, 1995 Mo. App. LEXIS 1960
CourtMissouri Court of Appeals
DecidedNovember 28, 1995
DocketNos. 66340, 66446 and 66834
StatusPublished
Cited by8 cases

This text of 910 S.W.2d 837 (In re Waldron) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Waldron, 910 S.W.2d 837, 1995 Mo. App. LEXIS 1960 (Mo. Ct. App. 1995).

Opinion

CRAHAN, Presiding Judge.

This case is the consolidation of three appeals by Edna Waldron (“protectee”) from orders of the Circuit Court of Cape Girar-deau County, Probate Division, relating to the appointment of her conservator. We affirm.

Because this is a court-tried case, the decree or judgment will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Rule 73.01(c). None of the parties requested that [839]*839the probate court make specific findings of fact or conclusions of law, and only those required by statute were issued. See § 475.075.9 RSMo 1994.1 All other factual issues are, therefore, deemed to have been found in accordance with the result reached, and the judgment must be affirmed under any reasonable theory supported by the evidence. Brown v. Storz, 710 S.W.2d 402, 403 (Mo.App.1986).

Protectee, who was 85 years old at the time of the hearing, was married to Leonard V. Waldron for fifty years until his death on March 21, 1991. The couple had two sons, Kenneth L. Waldron and Charles V. Wal-dron. On May 6, 1993, Charles filed an involuntary petition for appointment of a guardian and/or conservator for protectee. On June 14, 1993, protectee filed a voluntary petition requesting that Kenneth Waldron be appointed her conservator. The petitions were consolidated for hearing.

Permeating the dispute over a conservator for protectee is the considerable discord between Kenneth and Charles Waldron and accusations of misconduct on the part of each. Prior to Leonard Waldron’s death, Kenneth obtained from his father approximately $400,000 which Kenneth considered to be a gift. No gift taxes were paid on the transaction. After Leonard Waldron’s death, Kenneth acted as personal representative for Leonard’s estate. Charles objected to Kenneth’s handling of the estate. As part of a “settlement” between Kenneth and Charles, Kenneth signed two promissory demand notes, one for between $330,000 and $385,000 now held by the trust established by Leonard Waldron for the benefit of protectee, the other, for $85,000, held by protectee herself. Kenneth Waldron asserted this money was intended as a gift to him and that the demand notes were an accommodation designed to avoid adverse tax consequences to the estate. Kenneth also borrowed approximately $100,000 from protectee in the year prior to the hearing.

As to Charles Waldron, there is currently a suit filed by protectee against Charles and Edward D. Jones & Co. pending in Circuit Court of Cape Girardeau County which alleges that Charles misappropriated over $400,-000 from protectee. Charles is also accused of using $100,000 of protectee’s money to build a home on his property and of withholding other substantial personal property of protectee.

Following the hearing, the court entered an order containing express findings that: 1) protectee is a disabled person and in need of a conservator; 2) protectee, though frail in body, has the capacity to understand her need for a conservator; 3) protectee’s choice of Kenneth as her conservator was a reasonable choice for her to make; but 4) Kenneth Waldron is not suitable or qualified, even though he is able to provide a bond. The court then ordered that Kenneth, Charles, and protectee each submit the names of three potential conservators.

After the parties submitted their suggestions, the court appointed Richard Swaim, a person named by Charles Waldron, as conservator. The court later authorized the conservator to engage an attorney to defend protectee’s appeal of his appointment, and to set aside $5,000 of protectee’s funds to pay for court costs, administrative expenses, conservator fees, and attorney fees.

In her brief, protectee submits four multifarious and confusing points of error attacking the court’s failure to name a limited conservator pursuant to §§ 475.075(10) and 475.080.2, its rejection of her choices for conservator, Kenneth Waldron or Dewey Keller, and its authorization of an administrative fund of $5,000 to defray costs and fees which may be incurred in defense of her appeal. The confusion arises in large part because protectee has chosen to frame her contentions in terms of a denial of due process and/or equal protection guaranteed by the Fourteenth Amendment to the United States Constitution “and similar provisions of the Constitution of the State of Missouri.” These claims are in turn predicated on the erroneous premise that the trial court found protectee to be “a competent person.”

The trial court made no finding that pro-tectee was “a competent person.” It found [840]*840protectee to be “a disabled person and in need of a conservator,” as specifically alleged in both the voluntary petition filed by protec-tee and the involuntary petition filed by Charles Waldron. Nowhere in her brief does protectee challenge the sufficiency of the evidence to support this finding. Having voluntarily invoked the protection of .the court based on an allegation that she is disabled, and in the absence of any claim that the court’s finding is unsupported by substantial evidence, protectee has no basis for claiming that the resulting restrictions on her freedom are a violation of equal protection vis-a-vis non-disabled persons.

Nor do we discern any basis for pro-tectee’s contention that the court failed to consider less restrictive alternatives to appointment of a conservator. Protectee does not identify any lesser restrictions that would be supported by the evidence. Section 475.080.2, cited by protectee as authority for appointment of a limited conservator, applies only where the court finds the subject to be “partially disabled.” As noted above, the court found protectee to be “disabled,” not “partially disabled.” In any event, it is apparent that protectee’s constitutional and statutory hyperbole is essentially window dressing for protectee’s true complaint which we address below — i.e., that the trial court erred in rejecting her choices for conservator. The merits of that claim are properly resolved by reference to the statutory provisions directly governing the selection of the conservator.

Protectee urges that the court erred by not appointing Kenneth Waldron or Dewey Keller, protectee’s first and second choices, as conservator. Protectee argues that once she was found competent, § 475.0502 leaves the probate court with no discretion in choosing a conservator, and at that point protectee had an absolute right to choose her conservator.

Protectee seizes on language from In re The Matter of the Estate of R.B. Potashnick, 841 S.W.2d 714 (Mo.App.1992), to support the claim that once protectee was declared “competent” the Probate Division had no authority to appoint any conservator other than that selected by protectee. This reliance is misplaced. In the first place, as discussed above, the court made no finding that protec-tee is “competent.” Moreover, §§ 475.050 and 475.062 3 simply require that when a voluntary petition for appointment of a conservator is filed and the protectee is determined to have the capacity to choose his conservator and makes a reasonable choice, “the court shall first consider the

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re: M.K., Appeal of: M.K.
Superior Court of Pennsylvania, 2025
Estate of Andrew F. Rodgers, Appeal of: Wehar, S.
Superior Court of Pennsylvania, 2019
Sundell v. Andrews
220 S.W.3d 471 (Missouri Court of Appeals, 2007)
In Re Wyman
220 S.W.3d 471 (Missouri Court of Appeals, 2007)
Estate of Rogers v. Battista
125 S.W.3d 334 (Missouri Court of Appeals, 2004)
Oliva v. Oliva
113 S.W.3d 269 (Missouri Court of Appeals, 2003)
Roosevelt Bank v. Moore
944 S.W.2d 261 (Missouri Court of Appeals, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
910 S.W.2d 837, 1995 Mo. App. LEXIS 1960, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-waldron-moctapp-1995.