Kuelbs v. Hill

379 S.W.3d 716, 2010 Ark. App. 793, 2010 Ark. App. LEXIS 841
Court of Appeals of Arkansas·Decided December 1, 2010·No. No. CA 09-931·Published·Cited by 4 cases

Opinion

ROBERT J. GLADWIN, Judge.

| T This is the latest in a series of appeals involving the guardianship of Kristin Kuelbs, an incapacitated adult.1 In this appeal, Kristin’s brother and sister-in-law, appellants Donald and Edwardena Hill, challenge several orders entered by the Garland County Circuit Court between March 5, 2009, and April 9, 2009, including an order that appointed Kristin’s sister, appellee Kimberly Hill, as Kristin’s guardian. For the reasons set forth below, we affirm the court’s orders.

I. Procedural history

[zIn 2001, Kristin Kuelbs suffered head injuries in a car accident. Several years later, Kimberly and two other family members told a Wisconsin court that Kristin had poured hot coffee on one of her sisters and had talked about shooting certain family members and killing herself. A Wisconsin mental-health facility evaluated Kristin for approximately three months and decided in early 2007 to release Kristin to Donald’s care in Hot Springs.

On November 20, 2007, Kimberly, a Minnesota resident, filed a petition in Garland County Circuit Court seeking appointment as Kristin’s guardian. Kimberly stated that Kristin suffered from physical and mental disabilities and lacked the capacity to care for herself. Donald in turn sought conservatorship of Kristin and accused Kristin’s other family members of “swindling” her assets.2 Dr. Paul Deyoub performed a court-ordered psychological evaluation of Kristin and determined that her mental illness, which manifested in raging anger, hostility, and the potential for physical violence, required admission to an in-patient psychiatric facility. Dr. Deyoub also stated that Kristin needed a guardian of her person and estate but that the guardian should not be a family member. The doctor testified to his findings at an August 28, 2008 hearing.

On October 8, 2008, the circuit court appointed social worker Valerie Swearin-gen as the guardian of Kristin’s person and First National Bank of Hot Springs as the guardian of her estate. Thereafter, Donald, as a newly licensed attorney, appealed on behalf of himself and Kristin, challenging the court’s guardianship ruling, the validity of Dr. Deyoub’s diagnosis, |sand several other intermediate rulings. We affirmed in part and dismissed in part in Kuelbs I, supra.

While the appeal in Kuelbs I was pending, the circuit court continued to hold hearings and enter orders concerning Kristin’s guardianship. In December 2008 and January 2009, the court disqualified Donald as Kristin’s attorney;3 relieved Swearingen as the guardian of Kristin’s person; appointed Donald as the guardian of Kristin’s person; and commanded Donald to admit Kristin to Bridgeway within ten days for in-patient evaluation and treatment. When Donald did not admit Kristin as directed, the court entered orders on March 6 and 9, 2009, finding that Kristin was a danger to herself or others and that law-enforcement officers should take her into custody and transport her to Bridgeway. The officers did so on March 10, 2009. The court then entered an order on March 19, 2009, finding that Donald had failed to comply with the court’s directives; that Donald should be removed as the guardian of Kristin’s person; and that Kimberly should be appointed in his stead. Kimberly subsequently moved Kristin to the Mayo Clinic in Minnesota, and the court restricted Donald’s access to Kristin, leaving it to the Clinic’s discretion. This appeal followed.

II. Orders entered after first appeal

We first address Donald’s argument that the circuit court lacked the authority to continue its proceedings after the appeal was filed in Kuelbs I. Donald relies on Arkansas Code Annotated section 28-1-116 (Repl.2004), which is a portion of our Probate Code that ^applies to guardianship cases. See Ark.Code Ann. § 28-65-103(a) (Repl.2004). Subsection (e)(1) of section 28-1-116 reads as follows:

An appeal shall stay other proceedings in the circuit court except when and to the extent that the court finds that no interested person will be prejudiced and by order permits other proceedings to be had.

Under this section, “a court may not proceed further in a probate case when an appeal has been taken unless it makes a finding that no one will be prejudiced and by order permits additional proceedings.” Nat’l Union Fire Ins. Co. v. Standridge, 299 Ark. 91, 92, 771 S.W.2d 22, 23 (1989) (emphasis in original).

Several proceedings in the present case occurred after March 2, 2009, the date on which Donald filed his record with our court in Kuelbs I. Further, the circuit court conducted those proceedings without finding that no interested person would be prejudiced thereby. Accordingly, Donald argues, the circuit court violated section 28 — 1—116(e)(1), and the orders from which he appeals, entered between March 5, 2009 and April 9, 2009, should be vacated.4 We conclude, however, that subsection (e)(1) should not be rigidly applied to all proceedings in this guardianship case.

First, the court’s orders required Donald to transport Kristin to Bridgeway within a specified time period. When that did not occur, the court delegated law-enforcement officers to pick up Kristin and take her to Bridgeway, and the court removed Donald as guardian abased on his violation of the court’s orders. The circuit judge was therefore grappling with a situation in which the terms of her orders had not been fulfilled. A circuit court has the authority to enforce its prior orders. See Stilley v. Ft. Smith Sch. Dist, 367 Ark. 193, 238 S.W.3d 902 (2006). Thus, subsection (e)(1) should not be read to preclude a circuit court from exercising this kind of judicial authority.

Secondly, our courts have crafted an exception to the rule that a circuit court loses jurisdiction to act once the record is lodged on appeal. In child-custody and child-support cases, the circuit court retains jurisdiction to modify prior orders. See Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997). By analogy, a guardianship case, like a child-custody or child-support case, involves ongoing events in the life of a person who is dependent on the court for protection. The court must continually exercise its powers, where changed conditions warrant, to safeguard thosé persons whose' needs cannot wait a year or more while an appeal makes its way through the courts. In the case at bar, the circuit court faced changed circumstances that called for immediate action, despite the pendency of the appeal. Donald had not admitted Kristin to Bridgeway within ten days as instructed, and Kristin remained without treatment for more than two months after entry of the court’s orders. The court held hearings on March 5 and 6, 2009, and discovered that Donald had left Kristin alone at his house while he and his wife were on a three-week cruise. Recalling Dr. Dey-oub’s diagnosis of Kristin and his strong recommendations for her evaluation and treatment, the court found that Kristin was a danger to herself or others and must be transported to Bridgeway.

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Kuelbs v. Hill, 379 S.W.3d 716, 2010 Ark. App. 793, 2010 Ark. App. LEXIS 841 (Ark. Ct. App. 2010).

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