Stautzenberger v. Stautzenberger

2013 Ark. 148, 427 S.W.3d 17, 2013 WL 1488277, 2013 Ark. LEXIS 172
CourtSupreme Court of Arkansas
DecidedApril 11, 2013
DocketNo. 12-432
StatusPublished
Cited by8 cases

This text of 2013 Ark. 148 (Stautzenberger v. Stautzenberger) 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
Stautzenberger v. Stautzenberger, 2013 Ark. 148, 427 S.W.3d 17, 2013 WL 1488277, 2013 Ark. LEXIS 172 (Ark. 2013).

Opinions

JOSEPHINE LINKER HART, Justice.

1 iFrom June 7, 2007, to July 24, 2009, Blair Stautzenberger served as guardian of the estate of C. Elizabeth Osborne, his mother. After her death, two of Blair’s siblings, Duane and Michael Stautzenber-ger, challenged his management of the estate. In a November 30, 2011 order, the trial court expressly adopted the findings of master it had appointed. It disallowed $85,747.17 of the expenditures that Blair had made; found that Blair’s failure to act as a reasonably prudent investor had cost the estate $201,587.23; found that Blair failed to account for a $15,000 withdrawal from an estate account, for which Blair would be personally liable; and made Blair personally liable for Duane and Michael’s attorney fees. On December 8, 2011, Duane and Michael moved to correct the judgment pursuant to Arkansas Rule of Civil Procedure 60, and on February 2, 2012, the trial court filed a modified order that made Blair personally liable for the disallowed expenditures, investment losses, and attorney fees. The modified order, however, took into account that other heirs chose to | ¡.stand by Blair in this action and, therefore, reduced by sixty percent the amount of money that Blair would have to repay the estate for disallowed expenditures and investment losses.1

On appeal, Stautzenberger argues that the trial court erred when it (1) exceeded its authority under Arkansas Rule of Civil Procedure 60 when, in the February 2012 modified order, it found him personally liable for certain expenditures where the original November 2011 order assigned him no personal liability and (2) disallowed expenses that contributed to the care and maintenance of Mrs. Osborne, which were consistent with her previous pattern of expenditures and charitable giving. We accepted certification from the court of appeals in accordance with Arkansas Supreme Court Rule 1 — 2(b)(6) (2012) because this case requires us to construe sections of the Arkansas Probate Code.

During the hearings on Duane and Michael’s challenge to Blair’s accounting, it was established that Blair became his mother’s guardian after the onset of his mother’s dementia. However, there was unrefuted testimony from Blair that he had “always” taken care of his mother. Prior to becoming a guardian, Blair held a power of attorney, and Mrs. Osborne had made known that, if she became incapacitated, she preferred that Blair be appointed her |sguardian. When Mrs. Osborne became incompetent, all of Blair’s siblings waived objection to Blair’s appointment. According to Blair, his “analysis” in deciding whether to pay an expense was always based on his mother’s wishes, conversations that he had with her prior to the establishment of the guardianship, and “historically” what she had done. Blair did not dispute that while serving as guardian, he spent the estate’s funds liberally. However, he denied having ever personally benefitted from these expenditures. Blair stated that Mrs. Osborne was generous, and he sought to maintain that characteristic in his management of her funds.

A court-appointed master found that $128,990.86 was misappropriated. Of this total, $37,956 was for Christmas and birthday gifts to family members and $5,898.69 for funeral expenses. Ultimately, the trial court found that Blair should not be personally liable for those disbursements. However, the trial court found that church donations in the amount of $9200, made on behalf of Mrs. Osborne, as well as direct support for her son Robert, totaling $3,883.94, schooling for a handicapped grandchild totaling $15,674, and support for Cheryl Faulkner, who was not a blood relative but whom Mrs. Osborne treated like a daughter, totaling $18,552. Also disallowed was a category referred to as “food and household expenses” that was attributed to Blair’s practice of supplying $60 restaurant gift cards that allowed Mrs. Osborne to buy lunch for nursing home staff who took her to church, restaurant food that he brought to the nursing home for Mrs. Osborne, various “parties” that he paid for at the home, postage to mail out items to family members, and other incidental and clothing expenses for Mrs. Osborne at the nursing home, over and habove the $7750 per month that was charged for her care. Finally, the trial court disallowed $9207 in cash withdrawals for which there was no evidence of where the money went save for Blair’s testimony that Mrs. Osborne always had several hundred dollars in her wallet.

As a preliminary matter, before this case was submitted, appellees moved to strike portions of Blair’s reply brief where he challenges the “missing” $15,000 and the $201,587.23 in investment losses. We dispose of this motion by noting that we adhered to our practice of not addressing the merits of an argument raised for the first time in a reply brief. Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007).

Blair first argues that the trial court exceeded its authority under Arkansas Rule of Civil Procedure 60 when it modified its November 30, 2011 order to find him personally liable for certain disallowed expenditures. He asserts that the motion to modify should have been denied because it failed to assert a “clerical mistake, error, or omission.” Blair also argues that the trial court erred in modifying the November 30, 2011 order because it was unnecessary for him to be found personally liable for the expenditures before Duane and Michael could pursue reimbursement from the surety. We do not find these arguments persuasive.

We review a trial court’s actions under Arkansas Rule of Civil Procedure 60 under the abuse-of-discretion standard. Office of Child Support Enforcement v. Pyron, 363 Ark. 521, 215 S.W.3d 637 (2005). We note that only 62 days had elapsed from the entry of the November 30, 2011 order until the entry of the February 2, 2012 modification. Under Rule 60(a) of the Arkansas Rules of Civil Procedure, within 90 days of entering an order, |sa trial court has broad authority to correct errors or mistakes or prevent miscarriage of justice by modifying the order or vacating it. Arkansas Rule of Civil Procedure 60(a) states:

(a) Ninety-Day Limitation. To correct errors or mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk.

Under Rule 60(a), the only limitation, on a trial court’s authority to vacate or modify a judgment is that it be done with “prior notice to all parties.” Here, the trial judge stated in open court that she had intended in the original order to make Blair personally liable for the disallowed expenditures. Accordingly, it was well within the trial court’s authority to amend the November 30, 2011 order, and we hold that the trial court did not err in entering the modified order.

Blair next argues that the trial court erred when it disallowed expenses that contributed to the care and maintenance of Mrs. Osborne which were consistent with her previous pattern of expenditures and charitable giving. Citing Federal Land Bank of St. Louis v. Miller, 184 Ark. 415, 42 S.W.2d 564 (1931), he asserts that “maintenance” encompasses a wide range of circumstances and that this court, in Francis v.

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Bluebook (online)
2013 Ark. 148, 427 S.W.3d 17, 2013 WL 1488277, 2013 Ark. LEXIS 172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stautzenberger-v-stautzenberger-ark-2013.