Beren v. Goodyear (In re Estate of Beren)

Citation412 P.3d 487
Decision Date21 November 2012
Docket NumberNo. 10CA2120.,10CA2120.
Parties In re the ESTATE OF Sheldon K. BEREN, deceased. David Beren, Zev Beren, Jonathan Beren, and Daniel Beren, Appellants and Cross–Appellees, v. Robert M. Goodyear, Jr., as Personal Representative of the Estate of Sheldon K. Beren; Miriam Beren ; and Generation Skipping Trust and the Trustees of said trust, Appellees, and Joshua Beren, Dena Beren Grossman, and the Estate of Cheryl Beren Feldberger, Appellees and Cross–Appellants.
CourtCourt of Appeals of Colorado

412 P.3d 487

In re the ESTATE OF Sheldon K. BEREN, deceased.

David Beren, Zev Beren, Jonathan Beren, and Daniel Beren, Appellants and Cross–Appellees,
v.
Robert M. Goodyear, Jr., as Personal Representative of the Estate of Sheldon K. Beren; Miriam Beren ; and Generation Skipping Trust and the Trustees of said trust, Appellees,
and
Joshua Beren, Dena Beren Grossman, and the Estate of Cheryl Beren Feldberger, Appellees and Cross–Appellants.

No. 10CA2120.

Colorado Court of Appeals, Div. I.

Nov. 21, 2012.
As Modified on Denial of Rehearing Feb. 14, 2013.


412 P.3d 490

Blain Myhre LLC, Blain D. Myhre, Englewood, Colorado, for Appellant and Cross–Appellee David Beren.

Fairfield and Woods, P.C., Charles F. Brega, Scott T. Rodgers, Lee Katherine Goldstein, Denver, Colorado, for Appellants and Cross–Appellees Zev Beren, Jonathan Beren, and Daniel Beren.

Horowitz/Forbes, LLP, Peter C. Forbes, Denver, Colorado, for Appellee Robert M. Goodyear, Jr.

Hale Westfall LLP, Richard A. Westfall, Peter J. Krumholz, Matthew W. Spengler, Denver, Colorado; The Moore Law Firm, P.C., Theresa M. Moore, Denver, Colorado, for Appellee Miriam Beren.

Paula Constantakis Young, P.C., Paula C. Young, Denver, Colorado, for Appellee Generation Skipping Trust.

Sweetbaum Sands Anderson PC, Alan D. Sweetbaum, Denver, Colorado, for Appellees and Cross–Appellants.

Opinion by Judge WEBB.

¶ 1 In a protracted probate proceeding during which the value of the estate significantly increases, does the probate court's equitable power include making a compensatory increase to the surviving spouse's elective share? Addressing a question of first impression in Colorado, we conclude that the probate court erred in making such an equitable adjustment, which is the primary issue in this appeal. We also remand for further proceedings on the corporate governance (Part IV) and the disputed leases (Part IX.B) issues. In all other respects, the probate court's orders are affirmed.

I. Introduction

¶ 2 Sheldon Beren, who died testate in 1996, was the founder and sole shareholder of Berenergy Corporation. He had four sons with his first wife, who predeceased him: appellants David Beren, Zev Beren, Jonathan Beren, and Daniel Beren (four brothers). Decedent then married appellee, Miriam Beren (Mrs. Beren, who survived him), and adopted her two children: appellees and cross-appellants, Joshua Beren and Cheryl Beren Feldberger (who is now deceased). Decedent and Mrs. Beren had one biological child, appellee and cross-appellant Dena Beren Grossman (collectively, Miriam's children).

¶ 3 Decedent's will provided a life estate for Mrs. Beren and left the residuary estate to the seven children. It designated her and appellee Robert M. Goodyear, Jr. (who was the chief financial officer (CFO) of Berenergy) as co-personal representatives. After Mrs. Beren petitioned under section 15–11–205, C.R.S.2012, to take an elective share in lieu of the life estate, Goodyear became the sole personal representative and continues in that capacity.1

¶ 4 In 2001, Mrs. Beren petitioned the court to determine the value of the augmented estate and based on that value the amount of her elective share. The four brothers objected to her proposed calculation. This issue was tried in 2002 and 2003.

¶ 5 The probate court issued two orders in 2003. The first order primarily addressed what assets were to be included in the augmented estate and the value of those assets. The second order reaffirmed a prior ruling that, as a matter of law, Mrs. Beren was not entitled to interest on her elective share. However, the court found that "because the estate has experienced earnings during the pendency of this litigation," Mrs. Beren was entitled to an equitable adjustment, which would be allocated against the remaining beneficiaries pro rata.

¶ 6 The next six years of litigation focused on Goodyear's computation of the augmented estate and the elective share; the methodology

412 P.3d 491

for computing the equitable adjustment; the amount of the equitable adjustment; and his proposed plan for distribution. Several issues in this appeal arise from the plan. In 2009, Goodyear filed his closing petition, which included his final compensation request. After several hearings, the probate court approved the plan and Goodyear's requested compensation. This appeal followed closure of the estate.

II. Disqualification

¶ 7 David Beren contends the probate court judge erred by not recusing from the entire case after having referred a single motion to a senior judge. This contention calls into question most of the probate court's rulings at issue. It is without merit.

¶ 8 A judge's decision whether to recuse will be reversed only for an abuse of discretion. Spring Creek Ranchers Ass'n v. McNichols, 165 P.3d 244, 245 (Colo.2007). Upon recusing, a judge loses jurisdiction to make any further rulings in the case. See Beckord v. District Court, 698 P.2d 1323, 1330 (Colo.1985).

¶ 9 Here, David Beren moved for an order directing the court reporter to prepare a transcript of the hearing on Mrs. Beren's elective share. The probate judge referred the motion to a senior judge because "the reporter referred to ... was an employee of this court prior to her retirement and because the court had conversations with said reporter about any preparation of transcripts prior to her retirement." Then David Beren moved the judge to recuse from the case completely, relying on Beckord. The judge denied the motion. We discern no abuse of discretion.

¶ 10 Beckord involved a judge who had recognized an appearance of impropriety and reassigned part of a consolidated action to another judge. The supreme court concluded that the judge had erred "in transferring only those parts of the actions which he perceived would be improper," because the "appearance of impropriety effectively disqualified him from ... deciding any issue in any of the cases." 698 P.2d at 1329.

¶ 11 In contrast, here the probate judge made no finding that ruling on the referred motion would have been improper. See People v. Lanari, 926 P.2d 116, 120 (Colo.App.1996) (no recusal required where "[e]ven though he could have decided the motion ... he, nevertheless, acting out of an abundance of caution, requested that the chief judge rule on this motion"); see also Comiskey v. District Court, 926 P.2d 539, 542 (Colo.1996) ("referral of the motion to the chief judge for decision does not require recusal of the trial judge").

¶ 12 Nor did the probate judge here find an appearance of impropriety. Comiskey, 926 P.2d at 542 (distinguishing Beckord because trial judge made no findings of impropriety); Lanari, 926 P.2d at 120 (same). Further, unlike in Beckord, here the court reporter's production of a transcript in no way implicated the merits of this case.

¶ 13 Accordingly, the probate court did not abuse its discretion by declining to recuse.

III. Equitable Adjustment to the Elective Share

¶ 14 The four brothers contend the probate court erred by awarding Mrs. Beren an equitable adjustment to her elective share based on appreciation and income to the estate during the prolonged administration. She responds that because the Colorado Probate Code (Code), sections 15–10–101 to – 17–103, C.R.S.2012, does not expressly preclude augmentation of a surviving spouse's elective share based on appreciation of, or income or interest earned by, the estate, the adjustment was within the probate court's broad equitable power under section 15–10–103, C.R.S.2012 ("[u]nless displaced by the particular provisions of this code, the principles of law and equity supplement its provisions"). We conclude that the adjustment was at odds with Code provisions which provide a precise and detailed mechanism for calculating the elective share, without regard to increases or decreases in the estate's value during administration, and another provision which addresses payment of probate income. Therefore, it must be set aside.

412 P.3d 492

¶ 15 The probate court's interpretation of the Code is reviewed de novo. In re Estate of Reed, 201 P.3d 1264, 1267 (Colo.App.2008).

¶ 16 In 1999, the probate court rejected Mrs. Beren's request for interest on her elective share, because "requiring interest on the elective share is a legislative prerogative and it is improper for the court to graft onto legislative provisions specific instances that could have been addressed but were not." However, the court noted that it would "retain" its "equitable power to award moratory interest."

¶ 17 In 2003, the court observed that "because the estate has experienced earnings during the pendency of this litigation, equity requires the court provide Mrs. Beren an award of interest." Then in 2009, applying "principles of equity," the court awarded Mrs. Beren $24,501,457 based on a 17.46 percent "investment rate of return," compounded monthly on the undistributed balance of her elective share.

¶ 18 The court explained that it had directed the personal representative to:

[D]etermine values of the estate on May 1, 2000 and December 31, 2007 and calculate a rate of return during that period. It was the Court's intention that the
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  • Beren v. Goodyear (In re Estate of Beren), No. 10CA2120.
    • United States
    • Court of Appeals of Colorado
    • November 21, 2012
    ...412 P.3d 487In re the ESTATE OF Sheldon K. BEREN, deceased.David Beren, Zev Beren, Jonathan Beren, and Daniel Beren, Appellants and Cross–Appellees,v.Robert M. Goodyear, Jr., as Personal Representative of the Estate of Sheldon K. Beren; Miriam Beren ; and Generation Skipping Trust and the T......

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