In the Matter of Linda Rushton Selman, an Incapacitated Person, Frank D. Selman v. Robert Rushton Hurley , 2022 Ark. App. 469 ( 2022 )

Cite as 2022 Ark. App. 469ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-21-528
IN THE MATTER OF LINDA Opinion Delivered November 16, 2022
RUSHTON SELMAN, AN
INCAPACITATED PERSON APPEAL FROM THE COLUMBIA
COUNTY CIRCUIT COURT
FRANK D. SELMAN [NO. 14PR-2020-31]
APPELLANT
HONORABLE DAVID W. TALLEY, JR.,
V. JUDGE
ROBERT RUSHTON HURLEY
APPELLEE AFFIRMED
STEPHANIE POTTER BARRETT, Judge
Appellant Frank Selman appeals the Columbia County Circuit Court’s appointment
of Rushton Hurley, Frank’s stepson, as guardian of the person and estate of his wife, Linda
Selman. On appeal, Frank argues (1) that the circuit court’s findings and ultimate
conclusion that it was in Linda’s best interest to appoint her son, Rushton, a resident of
California, as her guardian is clearly erroneous, especially in light of the opinions of the
forensic psychological expert and the attorney ad litem that he should be appointed as
guardian; (2) the circuit court erred as a matter of law when it ruled that a nonresident of
Arkansas may be appointed guardian of an adult; and (3) the circuit court erred as a matter
of law in finding an investigation by the Arkansas Department of Human Services, Adult
Protective Services was not binding on the court nor relevant. We affirm the circuit court’s
decision.
Linda has three children from her first marriage to Robert Hurley—Rushton,
Elizabeth, and Edward. After divorcing Robert, Linda and the children moved back to
Linda’s hometown of Magnolia, and Linda taught English literature at Southern Arkansas
University. Linda met Frank, who was twenty years her junior, when he was her student;
they began dating and married in February 1984. Frank attended optometry school in
Memphis, and he returned to Magnolia and opened his clinic in Linda’s father’s former
optometry clinic. Linda and Frank have a son, Frank David, who is autistic and lives in a
group home in Arkadelphia.
In March 2020, Rushton filed a petition requesting to be appointed guardian of
Linda’s person and estate due to her diagnosis of Alzheimer’s and/or dementia. When he
filed the petition, Linda was in the physical custody of the Arkansas Department of Human
Services, Adult Protective Services pending a hearing scheduled later that month regarding
allegations of adult abuse by Frank. Rushton further alleged in his petition that Linda
needed protection from Frank, asserting that Frank had neglected her physical well-being,
emotionally abused her, and had attempted to transfer her separately owned assets to
himself. Rushton appointed his brother, Edward, a resident of Fayetteville, Arkansas, as his
resident agent for service of process.
In his answer to Rushton’s petition, Frank admitted Linda is an incapacitated person
requiring the appointment of a guardian of both her person and estate, but while stating
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Rushton “may be appointed guardian even if he lives out of state,” Frank asserted that it was
not in Linda’s best interest for Rushton to be appointed guardian because he would be
unable to render the care, assistance, and attention Linda needed. In a counterpetition,
Frank asked the circuit court to appoint him as Linda’s guardian because he is her husband
and legally qualified to serve.
On August 7, 2020, Rushton filed a petition to be appointed the temporary guardian
of Linda’s person and to remove Frank from the home; in support of this petition, he cited
his concern regarding a mass in Linda’s abdomen for which Frank did not seek medical care,
as well as the fact that Frank had fired the persons employed by Southern Caregivers who
had been providing around-the-clock care for Linda. Affidavits from two caregivers
supporting Rushton’s concerns were attached to the petition. On August 11, the circuit
court entered an order appointing Rushton the temporary guardian of Linda’s person for
ninety days; in a supplemental order entered on August 14, Frank was ordered to vacate his
and Linda’s residence until a hearing on the appointment on August 17. On August 17, the
circuit court continued the appointment of Rushton as the temporary guardian of Linda’s
person for ninety days from entry of that order; gave Rushton the authority to employ
caregivers for Linda; and established visitation and telephone privileges for Frank.
On September 11, 2020, the circuit court entered an order directing Arkansas
Department of Human Services, Adult Protective Services, to release records of its
investigation into the alleged adult maltreatment of Linda pursuant to Rushton’s request for
such information. No objection was made to this request.
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On September 15, Rushton filed a motion to modify Frank’s telephone privileges and
in-person visitation, asserting that Frank continued to upset Linda with grievances about the
guardianship proceeding. He requested that Frank’s telephone conversations be limited to
one call a day on the days he did not visit in person, with no discussion about the
guardianship or his personal objections with Linda. An agreed order was entered on
November 13, continuing Rushton’s appointment as temporary guardian of Linda’s person
and providing that a caregiver, without interfering with visitation, remain in the room and
report any incidents the caregiver believed caused Linda distress. Frank was directed to
report any conduct by the caregivers he believed interfered with his visitation.
The circuit court appointed an attorney ad litem for Linda, who filed her report with
the circuit court on June 9, 2021, noting that Linda’s children and Frank all love Linda and
that Linda was troubled that her children were trying to keep Frank away from her. It was
the ad litem’s opinion that Linda was an incapacitated person within the definition of
Arkansas law. Although noting that the preference of an incapacitated person shall be taken
into consideration in appointing a guardian and that Linda wanted Frank to be her guardian
and to move home immediately, the ad litem conceded that the circuit court has great
discretion in its choice of guardian. The ad litem recommended that Frank be named as the
guardian of Linda’s person and estate, noting that the Arkansas Department of Human
Services investigation was unsubstantiated for abuse and neglect, and therefore, there was
no credible evidence of abuse or neglect before the court. The ad litem also favored Frank
because he lives in Magnolia, while Rushton lives in California, and she did not believe
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Rushton’s use of caregivers and extended family to help him was a practical or safe plan for
Linda. The ad litem attached the psychologist’s report to her own report; the psychologist
also recommended Frank as the most appropriate guardian for Linda, noting that he loves
her, wants to take care of her, and wants to live with her in the family home as long as that
is physically possible. The psychologist further recommended that Linda’s three older
children visit Linda once a month for a four-day weekend without Frank present.
After a multiday hearing spread over several months, the circuit court entered an
order on July 28, 2021, finding that Linda is an incapacitated person in need of a guardian
for her person and estate and appointing Rushton as her guardian. The order noted that
Rushton believes he should be Linda’s guardian due to concerns about Frank’s treatment of
Linda and the allegation that Frank had taken advantage of her financially; Frank believes
he should be Linda’s guardian because he knows her better than anyone else, he loves her,
and he lives in Magnolia; the psychologist opined that Frank is the most appropriate person
to be guardian because he loves Linda and wants to take care of her; and the ad litem also
believed Frank should be named guardian because the DHS investigation was
unsubstantiated, there was no credible evidence of abuse or neglect, Frank lives in Magnolia,
Rushton would have to rely on caregivers and extended family, Linda needs a guardian who
is physically close to her and lives with her, and there was no convincing evidence Frank had
attempted to transfer Linda’s assets to himself. The order acknowledged that Linda does
not believe she needs someone with her all the time, but if she had to have a guardian, she
“guessed” she would have to say it should be her husband; she loves Frank and her children
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and does not want to hurt anyone’s feelings; she wants Frank to move back into the house;
Frank had not verbally or physically abused her; and she trusts Rushton to do what he thinks
is in her best interest.
In its order, the circuit court found Linda was capable of expressing her wishes and
had done so, but she was not capable of determining what was in her best interest—and her
request that Frank be named her guardian was not in her best interest. The court appreciated
the time and input provided by both the psychologist and ad litem, but it disagreed with
both of them as to who should serve as Linda’s guardian. The court specifically found that
Frank was not a credible witness, and while he testified he loves Linda very much, he had
told Linda that she had ruined his life, did not have his back, and had manipulated him; he
intimated to Linda that her alcohol use during pregnancy may have caused Frank David’s
autism, without any medical evidence to support that assertion; he denied verbally abusing
Linda, although he admitted he had called her a manipulative liar and had cursed and yelled
at her; he described life with Linda as very unpleasant; and he had engaged in at least seven
or eight extramarital affairs that he admitted. The circuit court found that Frank’s disdain
for Linda was substantiated by other witnesses, including several caregivers and Rushton.
The court noted that it was especially appalled at Frank’s refusal to repair the toilet closest
to the living room, where Linda spent most of her time, and his requirement that the
caregivers place towels on the floors so Linda would not soil them if she had an accident,
finding that Frank’s refusal to repair the toilet was unfeeling at best and demeaning at worst.
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The circuit court determined that Frank was not suitable to be the guardian of Linda’s
person.
The circuit court further found Frank was also unsuitable to be the guardian of
Linda’s estate for the same reasons he was unsuitable to be the guardian of her person and
because Frank’s personal interests were in conflict with Linda’s best interest. It found Frank
had used marital funds to purchase property and then titled it solely in his name; he had
used some of Linda’s retirement and Social Security funds to pay for his attorney in the
guardianship proceeding, which was in bad faith; and he had caused a document to be
prepared that grossly divided their marital property unequally, and Linda had executed it,
even though she signed an affidavit the same day stating that she did not understand the
document and had signed it under duress.
The circuit court specifically found that it had no confidence that Frank would
conduct his life any differently if named Linda’s guardian than he did before Rushton filed
the petition for guardianship. Frank continued to work and travel; therefore, he would also
have to utilize caregivers for Linda, but he never stated a plan for obtaining caregivers, even
though the agency currently providing caregivers had said it would no longer do so if Frank
was named guardian. The court noted that it was not overly concerned with outdated food
in the refrigerator, it was concerned that Frank was the only person who insisted that Linda
be fed “old” food.
The court addressed the November 2019 report of suspected maltreatment of Linda
made to the Arkansas Department of Humans Services, Adult Protective Services, and the
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March 2020 notice of unfounded allegations of caregiver neglect and exploitation, which
was used by both the psychologist and the ad litem to support the appointment of Frank as
Linda’s guardian. The court stated that “the conclusion of the Adult Protective Services is
not binding on this Court, nor is it relevant.” It went on to further explain that there was
no evidence of the alleged facts prompting the initial complaint or the steps and processes
undertaken in the investigation, and it stated that neither the complaint nor the “unfounded
investigative determination” had any effect on its decision.
The court found that Rushton was legally qualified to serve as Linda’s guardian; that
Frank’s argument that a nonresident could not be appointed was not supported by Arkansas
law; and that, while not an ideal situation with Rushton living in California, there was
undisputed testimony that Linda had seen improvements since Rushton had been named
her temporary guardian. The court found that it was in Linda’s best interest for Rushton to
be named the guardian of her person and estate.
The court acknowledged Linda’s desire for Frank to move home as well as the
psychologist’s and ad litem’s opinions that Frank should be able to return home. It stated
that Frank could return to the home under certain conditions, including that Linda was
never left unattended; Frank was to see to Linda’s needs while in the home; an outside
caregiver was to have “eyes on” contact with Linda every forty-eight hours if Frank was in the
home for more than twenty-four hours; Frank could not harass or interfere with the
caregivers; Frank must give one week’s notice when he was not going to be in the home so
that appropriate caregiver arrangements could be made; Frank could not verbally abuse or
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demean Linda; Frank and Rushton must each notify the other if Linda needs medical
attention while not in one person’s care; and Linda’s caregiver expenses would be paid one-
half by the guardianship account and one-half by Frank.
In In re Guardianship of Gill, 2022 Ark. App. 243, at 6–7, 646 S.W.3d 387, 390–91
(reh’g denied July 13, 2022), this court set out the standard of review for guardianships:
Our appellate courts review guardianship proceedings de novo, but we will not
reverse a finding of fact by the circuit court unless it is clearly erroneous. Martin v.
Decker, 96 Ark. App. 45, 237 S.W.3d 502 (2006). A finding is clearly erroneous when,
although there is evidence to support it, the reviewing court is left with a definite and
firm conviction that a mistake has been made. In re Guardianship of Kennedy, 2020
Ark. App. 311, 603 S.W.3d 551. However, subject to statutory restrictions, the
selection of a guardian is a matter largely committed to the sound discretion of the
appointing court. Martin, supra. This standard of review accords greater deference to
the circuit court than the clearly erroneous standard. The appellate courts will not
reverse a case involving an application of guardianship in the absence of a manifest
abuse of discretion. Id. When reviewing the proceedings, we give due regard to the
opportunity and superior position of the circuit court to determine the credibility of
the witnesses. Spurling v. Est. of Reed, 2018 Ark. App. 185, 544 S.W.3d 119.
In his first point on appeal, Frank argues that the circuit court erred in appointing
Rushton Linda’s guardian instead of him because the psychologist and the ad litem both
concluded that he was the better choice, and Linda expressed her desire for Frank to be her
guardian. He contends that for the circuit court to appoint Rushton as guardian, it had to
disregard expert opinions and even Linda’s own desire. He claims that all other witnesses
were “simply a ‘he said, she said’ situation.” In support of his argument, he cites Arkansas
Code Annotated section 28-65-204(b)(3)-(4) and (c) (Repl. 2012), which provides that when
appointing a guardian for an incapacitated person, a court shall take into consideration
certain factors, including the request of an incapacitated person’s spouse, the relationship
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by blood or marriage to the person for whom guardianship is sought, and the incapacitated
person’s preference for his or her guardian. He also argues that Rushton lives two thousand
miles away from Linda, which should negatively impact Rushton when considering whether
he is qualified and suitable to serve, as required by Arkansas Code Annotated section 28-65-
210(3) (Repl. 2012). Frank maintains that the opinions of the psychologist and ad litem
should have been given greater weight by the circuit court, not “essentially ignored.”
The statute does not require a rigid order of preference; rather, it is left to the sound
discretion of the court to determine who would act in the best interest of the incapacitated
person. Martin v. Decker, 96 Ark. App. 45, 237 S.W.3d 501 (2006). As stated above, the
circuit court’s selection of a guardian is a matter largely committed to its sound discretion,
and this court will not reverse that decision in the absence of a manifest abuse of that
discretion. In re Guardianship of Gill, supra. The testimony of the other witnesses was not
just “he said, she said” as Frank claims—many of Linda’s caregivers testified as to the manner
in which Frank treated Linda; his statements about how difficult his life is with her; his
refusal to do things to make Linda’s life more comfortable, such as raise or lower the
thermostat or repair the toilet; and his comments to one of the caregivers that he would lose
$2 million if he divorced Linda. Frank admitted that he had taken trips and engaged in
multiple extramarital affairs over the years, even though he knew it hurt Linda when she
learned of them. While the circuit court was required to consider recommendations and
preferences for guardian, it was not required to abide by those recommendations and
preferences. It is the circuit court’s responsibility to determine witness credibility; in this
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case, the circuit court specifically determined that Frank was not a credible witness and that
appointing Frank as guardian was not in Linda’s best interest. It is not this court’s function
to reweigh the evidence and the credibility of the witnesses, which is essentially what Frank
is asking us to do. We hold that the circuit court did not abuse its discretion in appointing
Rushton as Linda’s guardian.
Frank next argues that the circuit court erred as a matter of law when it ruled that a
nonresident of Arkansas may be appointed a guardian of an adult. Arkansas Code
Annotated section 28-65-203(a)(1) (Supp. 2021) provides that a natural person is qualified
to be appointed guardian of the person and estate of an incapacitated person if he or she is
a resident of Arkansas who is at least eighteen and of sound mind, and who is not a convicted
and unpardoned felon or a convicted and unpardoned felon who is found to be otherwise
qualified after disclosing such information. Subsection (f)(1) of this section provides:
A nonresident natural person possessing the qualifications in this section, except as
to residence, who had appointed a resident agent to accept service of process in any
action or suit with respect to the guardianship and has caused the appointment to be
filed with the court, whether or not he or she has been nominated by the will of the
last surviving parent of a minor resident of this state to be appointed as guardian of
the minor, is qualified for the appointment.
Frank contends that the phrase “whether or not he or she has been nominated by the
will of the last surviving parent of a minor resident of this state to be appointed as guardian
of the minor” restricts such appointments of nonresident natural persons except in the case
of minors. We disagree. In Martin, supra, the incapacitated person, Mary Ann Daley, lived
in El Dorado. Daley’s brother, Robert Decker, lived in Nebraska, and her daughter, Laurie
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Martin, lived in California, and both sought guardianship of Daley’s person. The circuit
court awarded guardianship to Decker, and Martin appealed. This court affirmed the circuit
court’s decision and cited Arkansas Code Annotated section 28-65-203(e)1 for allowing a
nonresident natural person meeting all other qualifications for appointment of guardian
other than residence to be qualified to be guardian if a resident agent is appointed and the
appointment has been filed with the court. See also Johnson v. Mitchell, 2013 Ark. App. 498(noting that a nonresident may be considered for appointment as guardian if qualified and
if a resident agent has been appointed to accept service of process). This issue has already
been decided by this court, and the circuit court properly considered, and ultimately
awarded, Rushton guardianship of Linda.
Frank’s last point on appeal is that the circuit court erred as a matter of law in finding
that an investigation by the Arkansas Department of Human Services, Adult Protective
Services, was not binding on the court, nor was it relevant. He argues that it must be
considered by the circuit court pursuant to Arkansas Code Annotated section 28-65-212(e)
(Supp. 2021), which provides that any existing Arkansas Department of Human Services
evaluation of which the court has notice must be considered by the court. We disagree.
What was introduced into evidence was a “Notice of Unfounded Investigative
Determination” citing unfounded allegations of caregiver neglect and exploitation, not an
evaluation. The circuit court explained in its order why it chose to give no weight to the
1
This section was redesignated to 28-65-203(f)(1) in 2011.
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unfounded finding—because there was no information regarding the circumstances
surrounding the initial report or the steps taken in the investigation. It is the circuit court’s
responsibility to determine relevance and the weight to be accorded the evidence, and this
court will not reweigh the evidence on appeal.
Affirmed.
VIRDEN and HIXSON, JJ., agree.
Crane, Phillips & Rainwater, PLLC, by: Steve R. Crane, for appellant.
Eugene Bramblett, for appellee.
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