Whaley v. Beckham

2015 Ark. App. 675, 476 S.W.3d 810, 2015 Ark. App. LEXIS 762
Court of Appeals of Arkansas·Decided November 18, 2015·No. CV-15-196·Published·Cited by 3 cases

Opinions

ROBERT J. GLADWIN, Chief Judge

| Appellant Timothy Whaley (‘Whaley”) files this one-brief appeal from the February 26, 2015 order entered by the Lonoke County Circuit Court denying his motion to dismiss appellees Pam and Don Beck-ham’s (“Beckhams”) petition to intervene, granting the Beckhams’ intervention, and reappointing the Beckhams as- temporary guardians of the person of Louise Whaley Shepherd a/k/a Louise Whaley (“Ward”) and the First Community Bank of Searcy (“Bank”) as guardian of the. Ward’s estate.1 Whaley’s sole argument on appeal 1 ais that the circuit court erred in allowing the permissive intervention of the Beckhams in this guardianship case. We affirm. . .

This case involves a dispute between the family of the Ward and her neighbors, the Beckhams, who claim they should be appointed temporary and permanent guardians of the person of the Ward. Janet Kaye Autry, a granddaughter of the Ward, originally filed ■& petition to be appointed temporary and then permanent guardian of both the estate and person of the Ward, and the circuit court made the temporary appointment; however, before a hearing could be held on the permanent appointment, the Beckhams were allowed to intervene and, the circuit court appointed them guardians of the person and the Bank as the guardian of the estate. Autry appealed, citing the following three points:

(1) there had been no testimony by affidavit or in person of a qualified professional to ascertain whether the Ward was in need of a guardian;
(2) the Beckhams did not have standing to intervene under the provisions of Rule 24(b) of the Arkansas' Rules of Civil Procedure; and
(3) the circuit court should have given preference to the family member, all things being equal.

This court reversed the case based upon the lack of an affidavit or other testimony of a professional, and did not reach the other issues. See. Autry, supra. The Beckhams filed a motion for reconsideration, which was denied, and the court’s mandate came down on January 14, 2015.

In the meantime, on December-10, 2014, Whaley, a grandson of the Ward, filed a petition to be appointed temporary guardian and then permanént guardian. On January 20, 2015, after the mandate was entered, Whaley filed an amended petition adding another |,(¡grandson to the list of persons to be notified. On January 27, 2015, prior to the circuit court taking action on' either petition, the Beckhams filed another petition to intervene and for appointment as guardians. Both the motion and the petition, as required, stated their reason for intervention as -... they have “consistently taken care of [the Ward].”

A full hearing was held on January 29, 2015, including a motion to dismiss the Beckhams’ motion to intervene. From the bench, the circuit court denied Whaley’s motion to dismiss the Beckhams’ petition, granted the Beckhams’ intervéntion, and reappointed the Beckhams as temporary guardians of, the Ward’s person and the Bank as guardian of the Ward’s estate. The order was entered of record on February 26, .2015, Whaley filed a timely notice of appeal by fax on the same day, and a hard copy was filed the following day, February 27, 2015.

The Arkansas Supreme Court, held in Duffield v. Benton County Stone Co., Inc., 369 Ark. 314, 254 S.W.3d 726 (2007), that an order granting permissive intervention, but denying intervention as a matter of right, is ' not immediately appealable. However, Arkansas Rule of Appellate Procedure — Civil (2)(a)(12) (2014) provides that an appeal may be taken from “[a]n order appealable pursuant to any statute in effect on July 1, 1979, including ... § 28-1-116[.]” Arkansas Code Annotated section 28-l-116(a) (Repl. 2012) provides, “Except, as provided in subsection (b) of this section, a person aggrieved by an order of the circuit court in probate proceedings under the provisions of the Probate Code may obtain a review of the order by the Supreme Court or the Court of Appeals.” Subsection (b) lists two exceptions — (1) removing a fiduciary for failure to give a new bond or to render an 1 ¿account as required by the court, or (2) appointing a special administrator — neither of which has any application in this case. Subsection (e)(1) provides for a stay of appeal; however, subsection (c)(2) specifically provides that guardianships will not be stayed during an appeal.

Arkansas Code Annotated section 28-65-218© (Repl. 2012) governs temporary guardianships and provides, “In other respects, the provisions of this chapter concerning guardians shall apply to temporary guardians, and an appeal may be taken from the order of appointment of a temporary guardian.”

Our court rules and the relevant statutes clearly provide that all probate orders, but for the two exceptions not applicable here, are appealable. Further, there is no distinction made between temporary and permanent guardianships; guardian-ships will not be stayed on appeal; and appeals may be taken from an order of appointment of a temporary guardian. Therefore, we hold that we have jurisdiction to hear Whaley’s appeal.

Guardianship proceedings are reviewed de novo, but the appellate courts will not reverse a guardianship decision unless it is clearly erroneous. Sherland v. Sherland, 2015 Ark. App. 342, 465 S.W.3d 3. Arkansas Code Annotated section 28-65-205(a) (Repl. 2012) provides, “Any person may file a petition for the appointment of himself or herself or some other qualified person [pursuant to section 28-65-203 (Supp. 2013) ] as guardian of an incapacitated person.” Section 28-65-203(a) provides that a natural person who is a resident of this state, eighteen or more years of age, of sound mind, not a convicted and unpardoned felon, is qualified.

|BThe standard of review in permissive intervention under Rule 24(b) is an abuse of discretion by the court. Mann v. Ark. Dep’t of Human Servs., 2012 Ark. App. 352, 415 S.W.3d 45. Abuse of discretion is described as “discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration.” Delgado v. Delgado, 2012 Ark. App. 100, at 6, 389 S.W.3d 52, 57.

The majority of appeals decided in Arkansas on this issue have been decided on the issue of intervention by right pursuant to Rule 24(a) of the Arkansas Rules of Civil Procedure, but this appeal involves the circuit court allowing what Whaley defines as “stranger[s] to the record” to intervene in a guardianship proceeding. According to Rule 24(c), the Beckhams, as intervenors, were required to state a basis for intervening that complies with Rule 24(b). The reasons provided were that “the intervenors are close acquaintances of the incapacitated person and have known [the Ward] for 15 years and ... have cared for [the Ward] for five years, including transporting her to and from her doctor’s appointments.”

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Whaley v. Beckham, 2015 Ark. App. 675, 476 S.W.3d 810, 2015 Ark. App. LEXIS 762 (Ark. Ct. App. 2015).

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