Stautzenberger v. Stautzenberger

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. Francis, 343 Ark. 104, 31 S.W.3d 841 (2000), “expressly approved a trustee’s use of trust funds to continue the ward’s standard of living.” Accordingly, Blair argues that $23,487.57, which was attributed to purchasing restaurant food for Mrs. Osborne and her guests as well as postage to mail gifts to family members, should not have been disallowed because it maintained her “routines and habits as much as possible.” Blair further argues that because the trial court removed $37,956.00 attributed to gifts made to family members from the master’s list of disallowed | (¡expenditures, similar “equitable logic” and statutory authority should apply to excluding the money Blair expended to support family members and maintain her “spiritual welfare” by making offerings to her church.

This court reviews probate proceedings de novo on the record, but we will not reverse the decision of the circuit court unless it is clearly erroneous. Rodgers v. Rodgers, 2012 Ark. 200, 406 S.W.3d 422 We likewise will not overturn the probate judge’s factual determinations unless they are clearly erroneous. Id. We, however, give no deference to the circuit judge with respect to matters of law. Graham v. Matheny, 2009 Ark. 481, 346 S.W.3d 273.

The extent to which the expenditures at issue made by Blair, on behalf of Mrs. Osborne, may be construed to be proper for the care and maintenance of the ward is a question of first impression. The Arkansas Probate Code obligates a guardian to “care for and maintain the ward.” Ark.Code Ann. § 28-65-301(a)(l) (Repl.2012). Furthermore, our guardianship statute expressly states that we are to be guided by the law of trusts when evaluating the duties and liabilities of a guardian of the estate. Ark.Code Ann. § 28-65-301(b)(2). We note also that Arkansas Code Annotated section 28-65-308(b) provides:

Upon a showing that the action would be advantageous to the ward and his or her estate, the court may authorize the guardian to make gifts and disclaimers on behalf of the ward.

We hold that the trial court clearly erred in finding that many of the expenditures made by Blair were improper.

First, with regard to the money that Blair spent to continue Mrs. Osborne’s practice 17of supporting family members, we note that Arkansas Code Annotated section 28-72-409(b) (Repl. 2012), which is part of our trust code, specifically authorizes a custodial trustee, without a court order, to continue to support individuals who were supported by a beneficiary when a beneficiary becomes incapacitated. Accordingly, this section authorized Blair to continue Mrs. Osborne’s support of Cheryl Faulkner and the expenditure of $18,552, Robert Staut-zenberger and the expenditure of$3,383.94, and Oscar Stautzenberger and the expenditure of $15,674. In total, the trial court erred in disallowing $37,609.94 for the support of these individuals.

We also hold that the trial court erred in finding that Blair’s facilitating Mrs. Osborne’s donations of $9200 to her church was an improper expenditure. In Winters v. Winters, 24 Ark.App. 29, 747 S.W.2d 583 (1988), our court of appeals affirmed a guardianship case in which church donations were challenged on appeal. We are persuaded that this holding is proper and hold similarly in this case. See also Estate of Powell v. Roper, 245 S.W.3d 280 (Mo.Ct.App.2008).

Regarding the expenditures labeled “food and household expenses,” we note that food and clothing fall well within the definition of what is required for “maintenance.” See Federal Land Bank, supra. It was undisputed that Mrs. Osborne entertained friends and staff members at restaurants and catered parties at the nursing home. From the record, it is apparent that Mrs. Osborne was able to fully enjoy life. Our probate code does not require that a ward be maintained in an austere and joyless environment. Therefore, these outings and parties properly fall within the definition of care and maintenance. Likewise, it was not |scontested that Blair took Mrs. Osborne shopping for clothing and other personal items, so the trial court clearly erred in categorically rejecting these expenditures. We nonetheless acknowledge that it is possible that not all of the $23,487.57 in expenditures are reasonable and necessary. We therefore reverse and remand this case to the trial court to make findings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

CORBIN, DANIELSON, and GOODSON, JJ., concur in part; dissent in part.

1 . We note that the concurring/disseriting justices have apparently misapprehended the trial court’s findings. In paragraph 2, the trial court commends Mr. Travis Riggs, the master it appointed, and found Mr. Riggs's work "to be reasonable in its approach and conclusions.” Save for a sum attributable to family gifts, paragraph 3 disallows the expenditures made by Blair in accordance with the recommendations made by Mr. Riggs. Likewise, paragraph 7 follows the recommendations of the master and finds that $201,587.23 in investment losses were attributable to Blair failing to follow the reasonably prudent investor standard. Paragraph 9 discusses $15,000 that Blair withdrew from an investment account and never accounted for. Paragraphs 10 and 11 dealt with attorney fees. Paragraphs 4, 5, 6, reject Blair’s defenses, and paragraph 8 rejects the testimony and methodology of Blair’s expert. Paragraph 12 apportions the award based on the support for or challenge to Blair as the guardian.