Matter of Guardianship of Vesa

892 S.W.2d 491, 319 Ark. 574, 1995 Ark. LEXIS 107
CourtSupreme Court of Arkansas
DecidedFebruary 20, 1995
Docket94-827
StatusPublished
Cited by15 cases

This text of 892 S.W.2d 491 (Matter of Guardianship of Vesa) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matter of Guardianship of Vesa, 892 S.W.2d 491, 319 Ark. 574, 1995 Ark. LEXIS 107 (Ark. 1995).

Opinion

Donald L. Corbin, Justice.

Appellant, Helena M. Lairamore, is the former guardian of the estate and person of the ward, William Vesa, an adult incapacitated person. Appellant appeals three orders of the Crawford County Probate Court: (1) order entered December 29, 1993 removing her as guardian of the ward’s estate, (2) order entered February 8, 1994 removing her as guardian of the ward’s person, and (3) order entered June 30, 1994 denying her motion for stay pending appeal, motion to reconsider previous rulings, and denying her effort to show cause why she should not be held in contempt of court for alleged failure to comply with court orders. We affirm the probate court’s judgment in part, and dismiss the appeal in part.

The ward in this case, William Vesa, lived a reclusive life with his father, Alexander Vesa, on a nine-acre farm in Crawford County. On September 4, 1992, Alexander Vesa died intestate, survived by two sons: William and Alexander Vesa, Jr. (Alex), and two daughters: appellant and Patricia Taylor (Patricia). In addition to their inheritance from the decedent’s probate estate, William and Alex, who had owned the farm jointly with the decedent as joint tenants with rights of survivorship, received that property outside probate. William’s inheritance and interest in the farm ultimately constituted his guardianship estate which was valued in the initial estate inventory at $140,893.86.

On February 2, 1993, appellant petitioned the probate court to establish a guardianship for William’s estate and person and to appoint her as guardian. A hearing was conducted. On May 6, 1993, the court filed an order finding that William was an incapacitated person in need of a guardianship for his estate and person. Over Alex’s objection, the order confirmed appellant as the initial guardian of both.

On December 29, 1993, the court filed an order removing appellant as guardian of William’s estate, appointing a local bank as successor guardian of the estate, and confirming that appellant would continue to serve as guardian of William’s person. The order also directed appellant to file her final accounting of the guardianship estate and to transfer the assets to the bank, as the successor guardian of William’s estate. From this order, appellant filed her first notice of appeal in January 1994.

On February 8, 1994, the court filed an order removing appellant as guardian of William’s person, and appointing William’s guardian ad litem, attorney Paul Post, as successor guardian of William’s person. In this order, the court found that appellant had failed to comply with its December 1993 orders to file her final accounting of the guardianship estate and to transfer its assets to the bank, and directed appellant to appear and show cause why she should not be held in contempt for this noncompliance. From this order, appellant filed her second notice of appeal in February 1994.

Pursuant to Ark. Code Ann. § 28-1-116 (1987 & Supp. 1993), a right to review by this court lies from all probate court orders, other than an order removing a fiduciary for failure to give a new bond or render an accounting required by the court, or an order appointing a special administrator. Section 28-1-116 (a) and (b). Section 28-1-116(g) also states that the law and rules applicable to appeals from equity courts apply equally to appeals from probate court, except as otherwise provided in the probate code. This court has stated that Rule 2 of the Arkansas Rules of Appellate Procedure preserved the statutory rights of appeal which were in existence at the effective date of the appellate rules, July 1, 1979. Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994). These preserved rights of appeal include those granted under section 28-1-116, which was enacted in 1949. Id.

Our jurisdiction of this appeal is proper pursuant to section 28-1-116 and Ark. Sup. Ct. R. l-2(a)(3), except for that part of-the appeal taken from the order entered February 8, 1994 removing appellant as guardian of William’s person for her failure to comply with its order to render an accounting and transfer the guardianship assets. Section 28-1-116(b). Therefore, we dismiss that part of the appeal taken from the probate court’s order entered February 8, 1994 removing appellant as guardian of William’s person. See In the Matter of the Estate of McLaughlin, 306 Ark. 515, 815 S.W.2d 937 (1991) (per curiam) (dismissing appeal from order refusing to appoint a special administrator, for lack of an appealable order). We proceed to address appellant’s other arguments for reversal.

This court reviews appeals from probate court de novo upon the record as abstracted. Clardy v. Williams, 319 Ark. 275, 890 S.W.2d 276 (1995). Absent clear error, we do not reverse the probate court’s order. In Re Estate of Spears, 314 Ark. 54, 858 S.W.2d 93 (1993).

FIRST POINT OF APPEAL

Appellant’s first point of appeal is that the order removing her as guardian of William’s estate entered December 29, 1993 is erroneous in both form and substance. Essentially appellant argues the court erred, first, because it never gave her the requisite opportunity to appear and show cause why she should not be removed, pursuant to Ark. Code Ann. § 28-48-105(a)(2) (1987 & Supp. 1993), and, second, because none of the grounds for removal of a guardian, as set forth in section 28-48-105(a)(l), were proved or are supported by the evidence.

Arkansas Code Annotated § 28-65-219(b) (1987) states that a guardian may be removed “on the same grounds and in the same manner as provided in § 28-48-105 for the removal of a personal representative.” Section 28-48-105, in turn, provides in pertinent part:

(a)(1) When the personal representative becomes mentally incompetent, disqualified, unsuitable, or incapable of discharging his trust, has mismanaged the estate, has failed to perform any duty imposed by law or by any lawful order of the court, or has ceased to be a resident of the state without filing the authorization of an agent to accept service as provided by § 28-48-101(b)(6), then the court may remove him.
(2) The court on its own motion may, or on the petition of an interested person shall, order the personal representative to appear and show cause why he should not be removed.

In this case, the probate court clearly acted on its own motion, and in the absence of a petition of any interested person, in removing appellant as guardian of William’s estate. A plain reading of section 28-48-105 authorizes such action on the court’s own motion, provided the removal order complies otherwise with the statute’s requirements.

We find no clear error was committed in removing appellant as guardian of William’s estate. We find that the section 28-48-105(a)(2) show cause requirement was substantially complied with. We find that the record supports appellant’s removal on the statutory ground of “unsuitability” based on the court’s finding of family friction, which adversely affected the guardianship estate’s administration.

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Bluebook (online)
892 S.W.2d 491, 319 Ark. 574, 1995 Ark. LEXIS 107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-guardianship-of-vesa-ark-1995.