Winch v. Fong

441 P.2d 561, 7 Ariz. App. 526, 1968 Ariz. App. LEXIS 436
CourtCourt of Appeals of Arizona
DecidedMay 29, 1968
DocketNo. 2 CA-CIV 471
StatusPublished
Cited by2 cases

This text of 441 P.2d 561 (Winch v. Fong) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Winch v. Fong, 441 P.2d 561, 7 Ariz. App. 526, 1968 Ariz. App. LEXIS 436 (Ark. Ct. App. 1968).

Opinion

MOLLOY, Judge.

This appeal brings into question the effect of ex parte orders entered by the court in a guardianship authorizing the guardian to withdraw certain monthly sums from the guardianship account for the support, maintenance and care of a minor.

The subject guardianship was established in 1958 for a minor child, Penni Purton, then of the age of 12 years. Her mother was appointed her guardian. The purpose of the guardianship was to administer approximately $3,000 which the child had inherited from an aunt. A first account and report was filed and approved by the court in October of 1958, which indicated there was $2,677 on hand after payment of the allowed costs. There were no further accounts until a “Final Account and Re[529]*529port” was filed in October of 1966, which accounting is the subject of this appeal.

There was no order entered by the court to provide for the support of the minor child until March of 1961. In the interim, by ex parte orders, the additional expenditures for attorney’s fees were approved in the total sum of $325 and in March of 1959, the court authorized the investment of $2,200 in the purchase of an undivided one-half interest in a home to be purchased by the minor and her mother. When there was a total of $563.94 remaining in the estate, the court entered the first support order on March 17, 1961, in the sum of $50 per month.

In April of 1961 (in the next month), a petition filed with the court indicated the minor had inherited an additional sum of approximately $21,000 through the death of her father, and a new order was secured from the court authorizing the sum of $200 per month for the support of the minor commencing with the month of April. In December, of 1961, this was increased by ex parte court order to $250 per month.

After the purchase of the home in 1959, it was occupied by the mother, the minor, and a half sister, Kim Lona Fong, who was the child of the mother and a second husband. For a short time, the home was also occupied by this second husband, who died in November of 1959, and by a niece of the mother. Kim Lona inherited certain property, the nature and extent of which is not disclosed by this record, from her father.

The mother and the two daughters continued to occupy the home purchased until October of 1963, when Penni left home to go to Hartford, Connecticut to attend school. Certain tuition and travel expenses were paid by the mother for Penni until approximately April of 1964, at which time Penni took a job and became self-supporting. She subsequently married in July of 1964. The only expenditures by the mother for the benefit of the daughter after April of 1964 consisted of the purchase of airline transportation for the daughter to come home on a visit in June of 1964, various telephone calls and small gifts, and whatever benefit Penni received from amounts expended upon the home, which the mother and the second daughter continued to occupy until December of 1966.

Despite the fact that the mother knew Penni had no intention of returning home after the visit in June of 1964, and was receiving no support from her mother, the mother continued to withdraw the sum of $250 per month from the estate to and including April 1, 1965. In March of 1965, the mother secured an order of the court authorizing the expenditure of $150 for a new roof on the home, and authorizing the withdrawal of $118.50 per month. $68.50 of this sum was represented in the ex parte application to be for one half of the monthly mortgage payments and $50 to be the “reasonable cost of maintenance” of a one-half interest in the home. At the trial of this action, it developed that this latter sum was to compensate the mother for her personal efforts in caring for the property.

On appeal from the order approving the final account filed in October of 1966, the parties take completely diverse views as to the substance of the order approving the account. This arises from the dual nature of the accounting filed, which uses two systems to account. One is based upon the orders of the court authorizing expenditures, without any breakdown of amounts withdrawn. This first method of accounting shows an excess of receipts over withdrawals of $10,313.41, which amount is indicated by the report to be in a guardianship bank account “available for immediate distribution” on court order.

The other system of accounting is based upon actual expenditures, going back to the commencement of the guardianship in 1958. In this system, Penni’s estate is charged with (1) one half of all mortgage and maintenance payments on the home, (2) one third of all utility bills, church donations, and groceries, and (3) amounts for medical, travel, clothes, entertainment, education and [530]*530miscellaneous. This detailed accounting is divided into two segments, the first covering the period prior to death of Penni’s father and the court order of March 1961, ■and the second, the period elapsing between March 1961 and July 1966, when Penni attained majority.

Prior to the March 1961 support order, the account indicates the mother expended $3,021.81 more for Penni than the amount of support received from her father ($3,-200). From March 1961, expenditures shown were less than the amounts claimed to have been withdrawn under court order by the total amount of $457.76. The deficiency between amounts actually expended and those withdrawn under court order for the 1961-1966 period is subtracted from the excess of expenditures claimed during the 1958-1961 period and the detailed accounting is summarized in this language: “Excess of Actual Support Expenses over Reimbursement Received $2,564.05.”

The first final account filed made claim for reimbursement for this $2,564.05, along with claims for expenses of administration, which included a $1,000 fee for the guardian, attorney’s fees in the sum of $850 and an accountant’s fee in the sum of $450. In this account, the guardian stated that the mortgage on the home was in default, and foreclosure imminent and that the guardian offered to convey to the daughter without consideration her one-half interest in the property. It was also stated this offer would remain open for an “indeterminate” time.

After objections to this account were filed, the mother filed an amended final account, which “adopted by reference” the original account, but made modifications, principally as follows: (1) the amended account indicated that by stipulation of counsel, $500 had been distributed to Penni and $987.56 paid on the delinquent mortgage, (2) it asked for additional compensation for attorneys and the accountant by reason of the contested litigation about to ensue, (3) it made no mention of the offer to convey real estate to the ward and (4) it made claim for the mother “in her capacity as guardian of Kim Lona Fong” in the sum of $2,563.05 for expenditures made on behalf of Penni.

It was over this last claim that much of the testimony before the trial court revolved. At this trial, the mother made it clear that the only reimbursement claimed was for moneys of her other daughter which. had been allegedly spent on Penni, prior to March of 1961. The mother categorically disclaimed any credit for her own moneys expended on. Penni’s support and stated that her second husband had paid for some of Penni’s expenses prior to his death, but that no claim was made for these expenditures.

At the conclusion of the trial, the judge ordered, by minute entry, that:

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Related

State v. McCormick
442 P.2d 134 (Court of Appeals of Arizona, 1968)
In Re Estate and Guardianship of Purton
441 P.2d 561 (Court of Appeals of Arizona, 1968)

Cite This Page — Counsel Stack

Bluebook (online)
441 P.2d 561, 7 Ariz. App. 526, 1968 Ariz. App. LEXIS 436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winch-v-fong-arizctapp-1968.