RENDERED: JUNE 30, 2023; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-0284-DG
PHOEBE ADKINS APPELLANT
v. ON DISCRETIONARY REVIEW FROM BOYD CIRCUIT COURT HONORABLE JOHN F. VINCENT, JUDGE ACTION NO. 21-XX-00002
LORA CONLEY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND JONES, JUDGES.
DIXON, JUDGE: Phoebe Adkins moved our Court for discretionary review of the
order of the Boyd Circuit Court, entered on February 21, 2022, reversing and
remanding the order of the Boyd District Court, entered on June 17, 2021,
removing Lora Conley as the Administratrix of the Estate of James Fitzgerald and
appointing Adkins as successor Administratrix. After careful review of the record,
briefs, and law, we affirm. BACKGROUND FACTS AND PROCEDURAL HISTORY
James Fitzgerald died intestate when a power station he was
demolishing collapsed. James was divorced from Phoebe Adkins and engaged to
Lora Conley. James had one heir: his minor daughter, Adison Fitzgerald.
Conley applied to the Boyd District Court for appointment as
Administratrix of James’ estate, providing notice of her application to Adison via
her mother, Phoebe Adkins. No objection was made, and Conley was appointed.
Prior to the appointment, Conley, Adkins, and James’ siblings agreed
to hire a Florida firm to handle the estate’s wrongful death claim; however, after
her appointment, Conley hired local counsel. Adkins then moved the district court
to remove Conley as Administratrix, and Conley objected. After a hearing, the
district court found Conley’s decision to hire local counsel, as well as her failure to
report at least two of James’ paychecks on the estate’s inventory, violated her
fiduciary duties. Consequently, the district court removed Conley as
Administratrix and appointed Adkins as her successor. Conley moved the district
court to reconsider, but her request was denied.
Conley then appealed to the Boyd Circuit Court. After the matter was
briefed and a hearing held, the circuit court reversed the district court because
Kentucky law “does not allow the personal representative to be removed except for
-2- some substantial and significant cause, and no such cause is present here.” Adkins
moved our Court for discretionary review.
STANDARD OF REVIEW
On appellate review, a trial court’s findings of fact shall not be set
aside unless clearly erroneous. CR1 52.01; Owens-Corning Fiberglas Corp. v.
Golightly, 976 S.W.2d 409 (Ky. 1998); Gosney v. Glenn, 163 S.W.3d 894 (Ky.
App. 2005); Alvey v. Union Inv., Inc., 697 S.W.2d 145 (Ky. App. 1985). “A
factual finding is not clearly erroneous if it is supported by substantial evidence.”
Gosney, 163 S.W.3d at 898. Substantial evidence is “that which, when taken alone
or in light of all the evidence, has sufficient probative value to induce conviction in
the mind of a reasonable person.” Bowling v. Nat. Res. & Env’t Prot. Cabinet, 891
S.W.2d 406, 409 (Ky. App. 1994). A trial court’s conclusions of law, however, are
subject to de novo review, and an appellate court owes them no deference upon
review. See Arnold v. Patterson, 229 S.W.3d 923 (Ky. App. 2007).
LEGAL ANALYSIS
On appeal, Adkins first argues that “misappropriation of estate funds,
whether through malfeasance of the Administratrix or through mistake of
Administratrix’s counsel, constitutes a sufficient factual basis to remove” an
Administratrix.
1 Kentucky Rules of Civil Procedure.
-3- KRS2 395.160 authorizes the district court to remove an estate’s
personal representative where the personal representative: moves out of the state
and fails to designate a process agent, becomes insane “or otherwise incapable to
discharge the trust,” becomes bankrupt, or is in failing circumstances. Yet, “while
the district courts are generally vested with a broad discretion in determining
whether an . . . administrator [or administratrix] shall be removed from office,
unless some good sound reason is shown the removal should be denied.” Wolfe
v. Young, 521 S.W.3d 598, 601 (Ky. App. 2017) (emphasis added). Furthermore,
“[w]ith regard to the statutory grounds for removal, it should be noted that [the
words] ‘otherwise incapable to discharge the trust’ . . . are susceptible of a broad
and general interpretation in that they have been held to embrace mismanagement
and waste which will result in substantial loss to the distributes[,]” and the law
presumes honesty and fair dealing among people. Id. at 602-03 (emphasis added).
There is no factual dispute in the case herein that at least two of the
decedent’s paychecks were not listed in the estate’s inventory. Yet, just as in
Wolfe, the district court in the case herein erred by “anticipating or presuming
[Conley’s] dishonesty and unfair dealings before any such bad intention had been
clearly established.” Id. at 603 (emphasis added). There is insufficient evidence
that Conley or her attorney converted or “misappropriated” the paychecks at issue.
2 Kentucky Revised Statutes.
-4- Instead, Conley’s attorney asserts that those items were inadvertently omitted from
the inventory and takes full responsibility for the omission.
Additionally, it was well within Conley’s authority as Administratrix
to hire any counsel she deemed appropriate under KRS 411.130 and 395.195.
Likewise, there is insufficient evidence that hiring local counsel would result in a
substantial loss to the estate. Accordingly, in the absence of a “good sound
reason,” the removal of Conley as Administratrix should have been denied.
Adkins’ second set of arguments centers around the notion that a
probate court can alter or vacate its prior orders regarding appointment of an
Administrator/Administratrix of an estate. These arguments nebulously address
the nonfinality of the orders appointing an Administratrix, vaguely assert that KRS
395.040 prefers the appointment of relatives of the deceased over those who are
unrelated, and include passing jabs at Conley’s previously resolved bankruptcy
proceedings. We will not search the record to construct Adkins’ argument for her,
nor will we go on a fishing expedition to find support for her underdeveloped
arguments. “Even when briefs have been filed, a reviewing court will generally
confine itself to errors pointed out in the briefs and will not search the record for
errors.” Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979). Consequently, we
decline to address this issue as it is an underdeveloped and vague alleged point of
error.
-5- Next, Adkins maintains there should be a presumption in cases like
this that the Administratrix should be the sole custodial parent of the minor heir.
While Adkins cites KRS
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RENDERED: JUNE 30, 2023; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-0284-DG
PHOEBE ADKINS APPELLANT
v. ON DISCRETIONARY REVIEW FROM BOYD CIRCUIT COURT HONORABLE JOHN F. VINCENT, JUDGE ACTION NO. 21-XX-00002
LORA CONLEY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND JONES, JUDGES.
DIXON, JUDGE: Phoebe Adkins moved our Court for discretionary review of the
order of the Boyd Circuit Court, entered on February 21, 2022, reversing and
remanding the order of the Boyd District Court, entered on June 17, 2021,
removing Lora Conley as the Administratrix of the Estate of James Fitzgerald and
appointing Adkins as successor Administratrix. After careful review of the record,
briefs, and law, we affirm. BACKGROUND FACTS AND PROCEDURAL HISTORY
James Fitzgerald died intestate when a power station he was
demolishing collapsed. James was divorced from Phoebe Adkins and engaged to
Lora Conley. James had one heir: his minor daughter, Adison Fitzgerald.
Conley applied to the Boyd District Court for appointment as
Administratrix of James’ estate, providing notice of her application to Adison via
her mother, Phoebe Adkins. No objection was made, and Conley was appointed.
Prior to the appointment, Conley, Adkins, and James’ siblings agreed
to hire a Florida firm to handle the estate’s wrongful death claim; however, after
her appointment, Conley hired local counsel. Adkins then moved the district court
to remove Conley as Administratrix, and Conley objected. After a hearing, the
district court found Conley’s decision to hire local counsel, as well as her failure to
report at least two of James’ paychecks on the estate’s inventory, violated her
fiduciary duties. Consequently, the district court removed Conley as
Administratrix and appointed Adkins as her successor. Conley moved the district
court to reconsider, but her request was denied.
Conley then appealed to the Boyd Circuit Court. After the matter was
briefed and a hearing held, the circuit court reversed the district court because
Kentucky law “does not allow the personal representative to be removed except for
-2- some substantial and significant cause, and no such cause is present here.” Adkins
moved our Court for discretionary review.
STANDARD OF REVIEW
On appellate review, a trial court’s findings of fact shall not be set
aside unless clearly erroneous. CR1 52.01; Owens-Corning Fiberglas Corp. v.
Golightly, 976 S.W.2d 409 (Ky. 1998); Gosney v. Glenn, 163 S.W.3d 894 (Ky.
App. 2005); Alvey v. Union Inv., Inc., 697 S.W.2d 145 (Ky. App. 1985). “A
factual finding is not clearly erroneous if it is supported by substantial evidence.”
Gosney, 163 S.W.3d at 898. Substantial evidence is “that which, when taken alone
or in light of all the evidence, has sufficient probative value to induce conviction in
the mind of a reasonable person.” Bowling v. Nat. Res. & Env’t Prot. Cabinet, 891
S.W.2d 406, 409 (Ky. App. 1994). A trial court’s conclusions of law, however, are
subject to de novo review, and an appellate court owes them no deference upon
review. See Arnold v. Patterson, 229 S.W.3d 923 (Ky. App. 2007).
LEGAL ANALYSIS
On appeal, Adkins first argues that “misappropriation of estate funds,
whether through malfeasance of the Administratrix or through mistake of
Administratrix’s counsel, constitutes a sufficient factual basis to remove” an
Administratrix.
1 Kentucky Rules of Civil Procedure.
-3- KRS2 395.160 authorizes the district court to remove an estate’s
personal representative where the personal representative: moves out of the state
and fails to designate a process agent, becomes insane “or otherwise incapable to
discharge the trust,” becomes bankrupt, or is in failing circumstances. Yet, “while
the district courts are generally vested with a broad discretion in determining
whether an . . . administrator [or administratrix] shall be removed from office,
unless some good sound reason is shown the removal should be denied.” Wolfe
v. Young, 521 S.W.3d 598, 601 (Ky. App. 2017) (emphasis added). Furthermore,
“[w]ith regard to the statutory grounds for removal, it should be noted that [the
words] ‘otherwise incapable to discharge the trust’ . . . are susceptible of a broad
and general interpretation in that they have been held to embrace mismanagement
and waste which will result in substantial loss to the distributes[,]” and the law
presumes honesty and fair dealing among people. Id. at 602-03 (emphasis added).
There is no factual dispute in the case herein that at least two of the
decedent’s paychecks were not listed in the estate’s inventory. Yet, just as in
Wolfe, the district court in the case herein erred by “anticipating or presuming
[Conley’s] dishonesty and unfair dealings before any such bad intention had been
clearly established.” Id. at 603 (emphasis added). There is insufficient evidence
that Conley or her attorney converted or “misappropriated” the paychecks at issue.
2 Kentucky Revised Statutes.
-4- Instead, Conley’s attorney asserts that those items were inadvertently omitted from
the inventory and takes full responsibility for the omission.
Additionally, it was well within Conley’s authority as Administratrix
to hire any counsel she deemed appropriate under KRS 411.130 and 395.195.
Likewise, there is insufficient evidence that hiring local counsel would result in a
substantial loss to the estate. Accordingly, in the absence of a “good sound
reason,” the removal of Conley as Administratrix should have been denied.
Adkins’ second set of arguments centers around the notion that a
probate court can alter or vacate its prior orders regarding appointment of an
Administrator/Administratrix of an estate. These arguments nebulously address
the nonfinality of the orders appointing an Administratrix, vaguely assert that KRS
395.040 prefers the appointment of relatives of the deceased over those who are
unrelated, and include passing jabs at Conley’s previously resolved bankruptcy
proceedings. We will not search the record to construct Adkins’ argument for her,
nor will we go on a fishing expedition to find support for her underdeveloped
arguments. “Even when briefs have been filed, a reviewing court will generally
confine itself to errors pointed out in the briefs and will not search the record for
errors.” Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979). Consequently, we
decline to address this issue as it is an underdeveloped and vague alleged point of
error.
-5- Next, Adkins maintains there should be a presumption in cases like
this that the Administratrix should be the sole custodial parent of the minor heir.
While Adkins cites KRS 395.040 to support her proposition, she ignores its plain
language, which provides in relevant part, “[t]he court shall grant administration to
the relations of the deceased who apply for administration[.]” (emphasis added).
Herein, no one except Conley applied to administer the estate. Adkins was given
notice of Conley’s application and failed to either object or apply to administer the
estate. Since Adkins did neither, the district court did not err in its appointment of
Conley as Administratrix.
Adkins’ final argument is that Conley cannot qualify as the estate’s
Administratrix because she has an adversarial relationship to its heir. This
argument is based on an extension of the “adversarial relationship” between
Conley and Adkins. Adkins argues Conley is a “constructive adversary” of the
sole beneficiary of the estate and should be deemed an adversary of the estate itself
and be disqualified.
Adkins cites Hunt v. Crocker, 246 Ky. 338, 55 S.W.2d 20 (1932), to
support her argument, comparing Conley to the estate’s representative that was
removed for cause. In Hunt, Kentucky’s highest court observed:
[a]nimosity of the relatives of a deceased of itself, or an open, hostile, adverse claim against the estate itself may or may not be either a ground justifying a denial of the appointment of a relative, or constitute legal cause for a
-6- removal after appointment; each case depending on its own particular facts.
Id. at 21 (emphasis added). No animosity has been demonstrated between Conley
and Adison, nor has it been shown that Conley has a claim against the estate.
Instead, Conley is factually and legally more similarly situated to the other
representative whom it was held should not have been removed. Like that
representative, “[n]o sufficient facts were shown to justify setting aside [Conley’s]
appointment.” Id. Thus, the district court erred in setting aside the appointment.
CONCLUSION
Therefore, and for the foregoing reasons, the order of the Boyd Circuit
Court is hereby AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Robert E. Salyer John R. McGinnis Lexington, Kentucky R. Stephen McGinnis Greenup, Kentucky
-7-