Rogers v. Ritchie

2017 Ark. App. 420, 528 S.W.3d 272, 2017 WL 3881923, 2017 Ark. App. LEXIS 478
CourtCourt of Appeals of Arkansas
DecidedSeptember 6, 2017
DocketCV-16-639
StatusPublished
Cited by5 cases

This text of 2017 Ark. App. 420 (Rogers v. Ritchie) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rogers v. Ritchie, 2017 Ark. App. 420, 528 S.W.3d 272, 2017 WL 3881923, 2017 Ark. App. LEXIS 478 (Ark. Ct. App. 2017).

Opinion

ROBERT J. GLADWIN, Judge

bln this appeal, we primarily consider whether certain expenditures were permissible expenses of the guardianship of John Collins Rogers. After years of litigation, the Pulaski County Circuit Court, Ninth Division, entered an order allowing and disallowing certain expenditures and terminating the guardianship. Both Barbara Rogers as guardian of John Collins Rogers and Florida Martin Ritchie as personal representative of John Collins Rogers’s estate subsequently appealed.

I. Background

In 2004, the Pulaski County Circuit Court, Thirteenth Division, entered an order appointing John Collins Rogers’s wife, Barbara Rogers, as guardian of his person and estate. Prior to the initiation of guardianship proceedings, John worked as a financial investor at John Collins Rogers & Co. An accounting firm was hired to audit John’s books, and it was |2discovered that he was depositing money from clients’ trusts into a single commingled account that he used to pay his personal expenses. One entity affected by John’s actions was the Martin Family Trust. As a result of John’s business practices, the Martin Family Trust obtained a $723,167.76 consent judgment against Barbara in her capacity as John’s guardian. 1

Later, Florida Martin Ritchie and Katherine Ann Martin Jaco, in their capacities as trustees of the Martin Family Trust, petitioned the circuit court to set aside the order appointing Barbara as guardian. They alleged that the order should be set aside because it was granted without adherence to Arkansas law for the appointment of guardians—pertinent to this appeal is their allegation that Barbara’s petition should not have been granted because it lacked the requisite professional evaluation of John’s medical and physical condition. Barbara defended her status as John’s guardian, and the circuit court denied the request to set aside the guardianship order.

As guardian of John’s estate, Barbara was responsible for exercising due care to protect and preserve his estate and to regularly account for it so that, in the event of his death, she could deliver assets to the persons entitled to them. See generally Ark. Code Ann. § 28-65-301 (Repl. 2012). Barbara failed to comply with her statutory responsibilities. She did not perform an inventory, nor did she provide the circuit court with an annual accounting. Additionally, she utilized two family bank accounts to pay all expenses.

IsJohn died in June 2007. His estate was assigned to the Pulaski County Circuit Court, Ninth Division. In January 2008, Florida Martin Ritchie requested to be appointed as the personal representative of John’s estate by virtue of the Martin Family Trust’s judgment against John. The circuit court appointed Florida as personal representative of John’s estate and entered an order transferring the guardianship case, previously assigned to the Thirteenth Division, to the Ninth Division.

Barbara filed a final accounting and motion to terminate the guardianship shortly following the January 2008 hearing. Florida, as personal representative of the estate, objected to several of Barbara’s expenditures that were found to be expenses of the guardianship.

The parties disputed for several years whether certain expenditures were allowable expenses of the guardianship. Barbara consistently argued that the guardianship was insolvent, and Florida, on behalf of the estate, asserted that the guardianship had a surplus that could be paid to its creditors. Because of Barbara’s actions and inactions as John’s guardian, the circuit court had understandable difficulty in surmising whether John’s estate had any assets at his death.

A hearing was convened in May 2009. The parties agreed that Barbara would file an amended accounting because the previous filing did not reflect all receipts and disbursements. Additionally, the circuit court heard argument from Barbara’s counsel on whether, in cases in which the guardian is the spouse of the ward, allowable expenses of the guardian can include the expense of maintaining the household in which the guardian and ward reside—in essence, whether a ward’s funds may be used to support others. The circuit 14court found as a matter of law that Barbara was not entitled to support herself with John’s funds.

Barbara prepared an amended final accounting in August 2009, and Florida objected to it. In November 2009, the parties appeared again in circuit court, and the circuit court took evidence on the expenditures and assets of the guardian. The hearing was adjourned without a formal ruling.

Several years later in April 2015, Barbara filed a second amended final accounting, and Florida again objected. The circuit court held a hearing in October 2015 and entered a final order in March 2016. This order allowed and disallowed certain expenditures made by Barbara during the pendency of the guardianship. The circuit court found that a balance of $56,431.87 was available to transfer to John’s estate, transferred that amount to his estate, and closed the guardianship. Barbara timely filed her notice of appeal, and Florida timely filed her notice of cross-appeal.

On direct appeal, Barbara argues that the circuit court erred by (1) finding as a matter of law that she was not entitled to support herself with John’s funds, (2) disallowing certain expenditures that were made to care and maintain the ward and his dependents without ruling on whether they were reasonable and proper and expended on the ward, (3) specifically disallowing expenditures for food and nutrition and storage-unit fees, and (4) refusing to find the order appointing Barbara as guardian void on its face. On cross-appeal, Florida contends that the circuit court erred in allowing two expenditures as expenses of the guardianship—funeral expenses and MetLife/NE Financial Life Insurance premiums.

| (¡II. Standard of Review

Probate cases are generally reviewed de novo, and this court does not reverse a circuit court unless its findings are clearly erroneous. Seymour v. Biehslich, 371 Ark. 359, 266 S.W.3d 722 (2007). A finding is clearly erroneous when, although there is evidence to support it, the appellate court is left on the entire evidence with the firm conviction that a mistake has been committed. Id. However, we give no deference to the circuit court on matters of law. Freeman v. Rushton, 360 Ark. 445, 202 S.W.3d 485 (2005).

III. Barbara’s Direct Appeal

The order appointing Barbara as John’s guardian was entered without the requisite evidence of John’s incapacity from a qualified professional. See generally Ark. Code Ann. §§ 28-65-211 & 28-65-212. We begin our analysis by considering whether this deficiency renders the guardianship void on its face because the disposition of this question affects the remaining issues on appeal.

It is clear that in this instance our statutory requirements were not followed and the circuit court should not have initially granted this guardianship. However, we decline to reverse on this point.

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Cite This Page — Counsel Stack

Bluebook (online)
2017 Ark. App. 420, 528 S.W.3d 272, 2017 WL 3881923, 2017 Ark. App. LEXIS 478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rogers-v-ritchie-arkctapp-2017.