Matter of Guardianship of Larson , 1998 S.D. LEXIS 50 ( 1998 )

GILBERTSON, Justice

(on reassignment).

[¶ 1.] Kathryn J. Larson Proano and Robert F. Larson (Children), filed objections to the Final Accounting and Report of the guardian of their father’s estate. After a contested hearing, the trial court overruled those objections and approved the accounting and discharge of the guardian. Children appeal, alleging inadequate accounting by the guardian and asking that the guardian be surcharged for improper and unexplained expenditures. We affirm.

FACTS

[¶ 2.] On October 26,1990, Verlyne J. Larson was appointed guardian of the person and estate of Harold L. Larson, her husband of sixteen years. Verlyne was Harold’s second wife. She sought the appointment because Harold was suffering from Alzheimer’s disease. By the time of Verlyne’s appointment as guardian, the disease had progressed to the point where Harold was unable to manage his business affairs. Verlyne’s appointment was strenuously opposed by the children of Harold’s first marriage, David, Robert and Kathy.

[¶ 3.] Verlyne’s relationship with Harold’s children was strained at best. Family discord also stemmed, from a suit that David had filed against his father’s company, Kreiser’s, Incorporated. See Larson v. Kreiser’s, Inc., 427 N.W.2d 833 (S.D.1988); 472 N.W.2d 761 (S.D.1991). As . a result of these family disputes, David was disinherited.

[¶ 4.] Robert and Kathy remained potential beneficiaries of Harold’s assets. Upon Harold’s death, his assets were to be placed in trust during the life of Verlyne. Verlyne would receive the income from this trust and the principal of the trust would be distributed to Robert and Kathy when Verlyne died. Verlyne could also consume the principal of the trust if it was needed for her support.

. [¶ 5.] At the time of her appointment, Ver-lyne was directed to file an accounting of all moneys or property received, or under her control, and to make an annual report to the court on the status of such assets and the estate of Harold Larson. Pursuant to that direction, Verlyne filed with the court annual reports for 1990, 1991, and 1992. For the years 1990-1992 she showed expenses for cash expenditures, the three country club memberships and expenditures for attorneys fees. No objections were raised by Kathryn or Robert to these expenditures during 1990-1992. The accountings were reviewed by the court and approved. Nevertheless, for the final accounting period, commencing in 1993, the children found fault with expenditures for the same type of expenses and methods of reporting they had previously acquiesced to.

[¶6.] Harold died on May 10, 1994, and Verlyne filed a final account and report of guardian on April 20,1995, covering the period from January 1,1993, up until the time of Harold’s death. Children filed an objection to the final account because of what they alleged were unexplained, unsupported and improper expenses, and requests for reimbursement from the Harold L. Larson guardianship estate by Verlyne.

[¶ 7.] These objections boiled down to five basic areas of contention. First, children took issue with cash expenditures which were unaccompanied by individual receipts. These disbursements, which children contend amounted to over $36,000 during a sixteen-month period, were simply noted in a general ledger in their amount without any record of what expenses were covered by them. Ver-lyne responded to these objections by contending that cash was often required in the community in which they lived in California, especially since Verlyne and Harold were from out of state and still banked in Sioux Falls. Verlyne also testified that $19,500 was spent on the purchase of a car for Harold.

■ [¶ 8.] Next, objections were made to payments for full country club memberships which historically Harold had extensively used but because of declining health and geography, were now used to a much lesser extent. Verlyne maintained Harold’s membership at both the country club near their home in California and also his charter memberships at Minnehaha and Westward Ho country clubs in Sioux Falls, although they had not been back to Sioux Falls for many years. Harold’s declining physical condition prevented him from golfing like he had during his healthier days and now only allowed him to chip and putt on limited occasions. Verlyne testified that she felt compelled to maintain the memberships in South Dakota because of Harold’s history as one of the original members at Westward Ho and Minnehaha and because of the possibility of returning to Sioux Falls to live. The membership in the California country elub was maintained, in Verlyne’s view, to maintain Harold’s dignity and pride. Harold often dined at the country club in California and, although a less expensive social membership was available, Verlyne wanted Harold to be able to do a little chipping and putting in the middle of the course at his leisure and also ride around in a golf cart without actually playing. She felt this gave him great pleasure.

[¶ 9.] The third area of objection was with regard to payments for travel expenses Ver-lyne incurred while vacationing without Harold. Verlyne took trips during 1993 and 1994 to Mexico City, Cancún, and Tijuana, Mexico; Houston, Texas; Sacramento and Ontario, California; Amelia Island and Jacksonville, Florida; and Las Vegas, Nevada. Verlyne’s travel and theater expenditures during this time period reached over $7,000. Payments for these trips were made both from the guardianship account and from a joint account in which Verlyne commingled Harold’s money with her own. Verlyne responded to the objections to the trip expenses by contending that she had placed around $17,000 of her own money in the joint account in 1993 and 1994, which she was entitled to spend. Also, Verlyne maintained that the trips were necessary for her to regain her health and strength after enduring the hardships of caring for Harold.

[¶ 10.] The fourth objection pertained to the purchase of an automobile for $19,500. Robert and Kathy questioned the purchase of the ear by the estate when there is no indicia of ownership linking it to Harold or his estate. Verlyne maintained that the car was purchased for Harold because he enjoyed going for drives and the cars otherwise available to Harold were either too small or prone to break down.

[¶ 11.] The last objection pertained to the attorney fees and expenses which were awarded to Verlyne and denied to children who contend fees and expenses were not properly granted to Verlyne because they were not incurred to protect Harold’s estate. Instead, they argue, the attorney fees went to protect Verlyne’s position as guardian and her inadequate accounting.

[¶ 12.] The court held a hearing and considered the objections raised by the Larson children. The court gave great evidentiary weight to the testimony of Verlyne. Moreover, the court felt that the objections were simply part of an ongoing family feud that the court did not want to continue. The court overruled the objections and approved the final accounting. Children brought this appeal challenging the sufficiency of the ae-counting and focusing on the five areas outlined above.

STANDARD OF REVIEW

[¶ 13.] In guardianship proceedings, the trial court’s findings of fact are reviewed under the “clearly erroneous” standard. In re Guardianship of Viereck, 411 N.W.2d 102, 106 (S.D.1987) (citing SDCL 15-6-52(a)). Under this test, “[w]e will not overturn the trial court’s findings unless, after reviewing all the evidence, we are left with a definite and firm conviction that a mistake was made.” Id. (citing Wiggins v. Shewmake, 374 N.W.2d 111, 114 (S.D.1985)).

APPLICABLE STATUTES

[¶ 14.] The children attempt to apply the wrong law to Verlyne. At the commencement of the reporting period in question, January 1, 1993, the law relied upon by the children did not exist. From January 1 to July 1, 1993, SDCL §§ 30-23-1 through 30-23-3 controlled guardianship accountings. Per SDCL §§ 30-26-3 and 30-25-28, receipts were optional with the trial court rather than required. See Estate of Nelson, 330 N.W.2d 151, 156 (S.D.1983); Estate ofWeickum, 323 N.W.2d 874, 876 (S.D.1982).

[T]he rigid requirements imposed upon an executor or administrator regarding the filing of vouchers is no longer applicable. This is not to say,- of course,' that the personal representative of an estate does not owe the highest duty of fidelity to the estate and to the beneficiaries thereof. We are satisfied that the trial court made a painstaking effort to insure that this high standard of fidelity be honored....

Weickum, 323 N.W.2d at 876. This standard also applied to guardianships. Nelson, supra)¹

[¶ 15.] On July 1, 1993, SDCL §§ 30-26-3 and 30-25-28 were repealed and SDCL ch 29A-5, the current South Dakota Guardianship and Conservatorship Act went into effect.²' SDCL 29A-5-103 states:

The provisions of this chapter concerning the filing of reports by guardians and the filing of accountings by conservators may not be retroactively applied and prior law shall control as to whether a report or accounting will be required for any period prior to July 1,1993.

(Emphasis added). Thus, the children are incorrect when they argue it retroactively applies the receipt requirements of SDCL 29A-5-408.³

ISSUE

[¶ 16.] ARE THE TRIAL COURT’S FINDINGS CLEARLY ERRONEOUS THAT VERLYNE PROPERLY CARRIED OUT HER DUTIES AS GUARDIAN?

[¶ 17.] 1. Cash Disbursements

[¶ 18.] We hold that the trial court was not “clearly erroneous” in its determination that the $36,905 reported as cash expenditures for Harold’s benefit is somehow inadequate reporting. Viereck, 411 N.W.2d at 106. This amount was spent over 16 months or $2,307 per month or $77 per day. This amount is hardly excessive for a person’s daily expenses for food and other necessities and pleasures, especially those persons of an advanced age and who reside in California. Verlyne would daily take Harold from the nursing home and drive him around, provide him meals at restaurants and bring him to their family home and cook for him there. Is she now to be held wanting because she did not have the foresight to know she supposedly needed receipts for a hamburger, ice cream cone, or a tank of gas? One can readily imagine the difficulty of attempting to make purchases in California on checks drawn on a Sioux Falls, South Dakota bank. Thus, one either attempts to spend this $77 per day with a credit card or with cash.⁴

[¶ 19.] To secure approval by the trial court Verlyne had to testify under oath and be subject to vigorous cross-examination. Also the children had the opportunity to present any relevant evidence they saw fit. The prior accountings were available for the trial court to study. The prior accountings had been approved with no criticism from the children or the trial court. She hardly was a presumptive perjurer who could only be held in check with a paper trail of receipts. Yet, for Verlyne to gain approval of her expenditures, she had to satisfy the trial court she was telling the truth and the expenditures were proper. She cleared all these hurdles and the trial court found in her favor.⁵

[¶ 20.] 2. Country Club Memberships

[¶ 21.] As with their other issues, the children’s challenge to Verlyne’s decision to maintain country club memberships, one in California and two in South Dakota, was disputed by the children only for the final accounting period. The trial court in rejecting their objection, concluded that Harold “was a longtime member of both country clubs in Sioux Falls and it is therefore understandable that those memberships were not relinquished during his life.” The trial court also approved of the country club membership in California.

[¶ 22.] There was the possibility that Harold and Verlyne would return to Sioux Falls. Although suffering from Alzheimer’s disease, Harold was not bed ridden until shortly before his death. Prior to his final illness, had he returned to Sioux Falls, he would have used his memberships in the same manner as the one in California. To say after he is dead that he did not use them so as to make the expenditures unnecessary, is unjustifiable 20-20 hindsight.

[¶ 23.] Harold was a charter member of Westward Ho and Minnehaha Country Clubs in Sioux Falls and this had been a point of long-standing pride with him. Up until three weeks before his death he made use of the country club membership in California by eating there, putting on the putting green, and riding around the course in a golf cart. Harold maintained his pride by continuing his life-long support of his memberships in South Dakota and still being able to make use of the one in California. Are we now to say that when a person who is no longer fully able to actively participate in an organization which he or she helped found, has belonged to and actively participated in for decades, it is a breach of a fiduciary duty for a guardian to continue to pay membership fees or donations for fraternal, civic, or even religious organizations?⁶ What dignity Alzheimer’s had not taken from Harold should not be taken from him under such a legal rationale as proposed by Harold’s children. We affirm the trial court.

[¶ 24.] 3. Travel Expenses

[¶25.] The court approved of Ver-lyne’s expenditures of guardianship funds for her trips on the theory that Harold and she had established a practice of taking six trips a year and thus Verlyne was entitled to maintain that lifestyle. The circuit court also concluded that Verlyne deserved the vacations to recover from the arduous task of caring for Harold.

[¶ 26.] The travel expenses were carefully reviewed by the trial court which found them justified. At least one of them was to attend a seminar on dealing with Alzheimer’s patients. Even if the balance of the trips were recreational, such a respite was justified from the physical and emotional drain of having to take daily care of and meet the ever increasing needs of a spouse suffering from Alzheimer’s.

[¶ 27.] 4. Automobile

[¶ 28.] Children contest Verlyne’s reimbursement for a $19,500 vehicle used to take Harold out for drives. Although it is unclear from the record whether the car was titled in Harold’s name and thus an estate asset, the findings of fact approved by the trial court specify that the car will become an asset of the guardianship.

[II29.] The automobile was a justifiable expense as found by the trial court. Harold enjoyed rides to the extent that when Ver-lyne could not drive him by herself, she hired a driver to provide this pleasure for Harold. We agree with the trial court it was an appropriate expense.

[¶ 30.] 5. Attorney Fees and Expenses.

[¶ 31.] The final challenge is concerning the matter of attorney’s fees. The rule for allowance is:

Attorneys’ fees necessarily incurred in the administration of [her] trust or in litigation for the benefit of the estate of [her ward] conducted in good faith and with reasonable care and prudenee[.] This rule is stated in the alternative, and should be understood as meaning that if the fees for services of an attorney employed by the [guardian] are necessarily incurred in the administration of the trust, that this is sufficient to authorize their allowance without a showing of benefit to the estate.

Matter of Estate of Hafferman, 442 N.W.2d 238, 242 (S.D.1989) (citing In re Engebretson’s Estate, 68 S.D. 255, 1 N.W.2d 351, 353 (1941); In re Engebretson’s Estate, 68 S.D. 572, 577, 5 N.W.2d 57, 59 (1942)).

[¶ 32.] As all the expenditures now complained of were found by the trial court to be justifiable, we approve the attorney’s fees as being for the benefit of the estate and that it was done in good faith and with reasonable care and prudence. The fees were also necessarily incurred in the administration of the guardianship. SDCL §§ 30-26-3 and 30-25-6. In a case such as this, if we were to construe the statute otherwise and hold to the contrary on a request for reimbursement for attorneys fees, what spouse will risk having to pay them out of their own funds? The spouse would be more financially prudent to attempt to terminate any assistance with finances for the disabled spouse in favor of outsiders as a form of financial self-defense. Would a corporate trustee take Harold for rides, to the putting green or drive him around the golf course?

Conclusion

[¶ 38.] Although the procedure followed here falls short of being a model of perfection and we do not recommend it to guardians/eonservators and their counsel as a guide to copy, that is not the issue before us. The issue is whether the trial court’s findings were clearly erroneous in determining that Verlyne properly carried out her duties as guardian. The trial court heard competing testimony and arguments from Verlyne and the children as to whether the funds were properly used for Harold’s benefit. The trial court determined that based upon all of the facts of this case, Verlyne fulfilled her duties as guardian. Based on the record, the findings of the trial court are not clearly erroneous.

[¶34.] At the time she became Harold’s guardian, Verlyne had been his faithful spousal companion for sixteen years through good times and bad, financially and otherwise. When business and legal reversals sent Harold from millionaire status to that of bankruptcy, she stood by him. Later, she was forced by herself to deal with an even more monstrous family crisis, that of advancing Alzheimer’s of Harold with no support or help from Harold’s adult children.

[¶35.] Although this case constitutes the legal relationship between a guardian and a ward, we should not lose sight of the fact it also deals with a husband and wife which is not only a legal relationship but also a personal and emotional one as well. SDCL 25-1-1. If one is to contemplate the nature and obligations of fiduciary duties, we know of no guardian nor conservator that takes an oath, “for better for worse, for richer for poorer, in sickness and in health, until death do us part,” and proceeds to keep it. Verlyne did.⁷

[¶ 36.] The trial court is affirmed.

[¶ 37.] MILLER, C.J., and KONENKAMP, J., concur. [¶ 38.] SABERS and AMUNDSON, JJ., concur in part and dissent in part.

1 . Making receipts optional was not granting the guardian the opportunity to misuse the ward’s funds but merely a recognition that the trial courts were competent to weed out the good from the bad. In Nelson, the guardian of an incompetent who was a nonrelative, failed to give the trial court an adequate explanation of entries labeled "cash for Mary (the ward)” and cash payments to the guardian’s wife and son. We affirmed the trial court’s refusal to approve these unsupported expenditures.

2 . SDCL 29A-5-408 is the current statute on ac-countings for guardianships. It states “[a]n accounting shall include: (2) a listing of receipts, disbursement and distributions from the estate under the conservator’s control during the period covered by the account!.]" Contrary to the argument of the dissent, this does not mandate receipts for all disbursements but merely requires their production and listing where they are in the possession of the conservator. The obvious reason for this requirement is for an orderly accounting and to avoid the situation where the conservator’ brings to the accounting a sack of receipts for the trial court to sort out and list. Such a listing also is necessary for giving proper notice to interested parties as to the expenditures made by the conservator for which it seeks court approval. If the Legislature wanted to make receipts mandatory as suggested by the dissent, it certainly knew how to so state as from 1877 until 1981 SDCL 30-25-28 and its predecessors required: " [i]n rendering his account, the [guardian] MUST produce and file vouchers for ALL charges, debts, claims and expenses which he has paid[.]”(emphasis added).

As such, whether this case is decided under the prior SDCL 30-25-28 or the current SDCL 29A-5-408 the result is the same, receipts are , not mandatory but the obligation rests on the guardian/conservator to justify to the satisfaction of the trial court that the expenditures were for the proper benefit of the ward/protected person.

3 .In accord is SDCL 29A-5-103 which also went into effect on July I, 1993. It states in part:

This chapter applies to all guardianships and conservatorships in this state, including guard-ianships created prior to July 1, 1993. Unless otherwise modified or terminated, all guard-ianships created prior to July 1, 1993, shall remain in full force and effect and all guardians shall retain their assigned powers and duties with respect to either financial or personal decision making except to the extent that the powers and duties under this chapter are broader or more clearly expressed. The provisions of this chapter concerning the filing of reports by guardians and the filing of account-ings by conservators may not be retroactively applied and prior law shall control as to whether a report or accounting will be required for any period prior to July 1, 1993.

The dissent fails to elaborate how a guardian/conservator under this statute who is given "broader or more clearly expressed" "powers and duties” under the new code, converts jurisdiction of this case from the old guardianship provisions of SDCL 30-25 & 26 to the current SDCL 29A.

4 . Verlyne’s practice of "commingling of Harold’s funds with her own funds,” does not seem so unusual or wrongful when one considers Verlyne was an elderly wife who had always maintained a joint checking account with her husband throughout their marriage. Verlyne testified she also placed $17,000 of her own personal funds into this joint account. Again the trial court considered these facts and found Verlyne’s accounting practices, while obviously not perfect, to be within that required by the law.

5 . The dissent claims that ”[t]o affirm the trial court in this case, establishes a rule that no meaningful review of the conduct of a fiduciary can ever be performed.” Given the numerous instances where fiduciary duties are assumed and performed, to claim without citation to statute or case law that a paper trail is mandatory to hold a fiduciary to his or her obligations, is incorrect. Our established case law is to the contrary. See Weickum and Nelson, supra, where this Court found no difficulty in conducting such a review.

6 . There is no other appropriate explanation for maintaining these memberships. Verlyne obtained no enjoyment from these beyond that of Harold, especially the two memberships in South Dakota provided her with no personal benefit as she was in California.

7 . While not necessary to affirm the trial court, it should not be forgotten that SDCL 25-2-1 states, "[h]usband and wife contract toward each other obligations of mutual respect, fidelity and support.” (emphasis added). Further per SDCL 25-2-11 each spouse is obligated to provide the other spouse with "the reasonable value of all the necessaries of life.” What constitute necessities depend on the individual facts of the case. Cf. Ochs v. Nelson, 538 N.W.2d 527, 530 (S.D.1995).