Clark's Estate v. Finney, WD

• Decision Date: 02 December 1980
• Docket Number: No. WD,WD
• Citation: 610 S.W.2d 367
• Parties: ESTATE of Raphael W. CLARK, Respondent, v. Alla Belle FINNEY, Arnetta Richardson, James Clark and Hubert Clark, Anna Lee Snyder, Paul Clark, Doyle Clark, Appellants. 31422.
• Court: Missouri Court of Appeals

Page 367

610 S.W.2d 367

ESTATE of Raphael W. CLARK, Respondent, v. Alla Belle FINNEY, Arnetta Richardson, James Clark and Hubert Clark, Anna Lee Snyder, Paul Clark, Doyle Clark, Appellants.

No. WD 31422.

Missouri Court of Appeals, Western District.

Dec. 2, 1980.

Per Curiam On Motion for Rehearing and/or Transfer Denied.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 30, 1980.

Wilbur L. Pollard, Kansas City, for appellants.

Tweedie Fisher, Jefferson City, for respondent.

Before CLARK, P. J., and DIXON and SOMERVILLE, JJ.

CLARK, Presiding Judge.

This is a proceeding for adjudication of incompetency commenced on petition to declare Raphael Clark a person of unsound mind. Judgment was entered sustaining the petition and letters of guardianship issued, but the trial court subsequently set aside its judgment and directed that the estate be closed. The petitioning family members appeal.

The record in this cause to date is, to say the least, unusual and must be reviewed in some detail. The petition for appointment of guardian was filed March 29, 1979 by Paul D. Clark, a brother of the alleged incompetent. Counsel for Raphael was appointed and a hearing on the petition was conducted in the probate division on April 17, 1979. Testimony was received concerning Raphael's condition, evidence being presented by a medical witness and by Paul and another brother Hubert. At the conclusion of the hearing, the court announced that the case would be taken under advisement.

On the same date, April 17, 1979, presumably after the hearing was concluded, the court entered its order on a printed form headed "Trial, Findings, Guardian of Person and Estate Appointed," with blank spaces filled in by typewriter. The order declared Raphael W. Clark to be a person of unsound mind, appointed Paul D. Clark guardian and issued directions as to the amount of bond and the fee allowance for appointed counsel.

Inexplicably, the record next contains a second order bearing a lengthy title describing various findings and directives, some of which appear only in the title. This second order is entirely typewritten and purports to be the record of an order made April 17, 1979. The file stamp inscription by the clerk, however, is dated April 19, 1979, and the order also includes the following recitation: "The matter is again taken up on the 19th day of April, 1979." There is otherwise no record of any proceedings in this case on April 19.

This second order differs from the first in several respects, but does conform in that both contain the finding that Raphael Clark is a person of unsound mind and both order the appointment of Paul D. Clark as guardian. In the first order, Paul was appointed guardian of Raphael's person and estate while in the second, the appointment is only as to the estate. In the first order, appointed counsel was allowed a fee of $100.00; in the second, $250.00. The first order made no provision for payment to the medical witness, but the second allows a charge of $100.00. From the content of the second order, it cannot be concluded that it was made with any intent to change or enlarge upon earlier findings nor does it appear that the second order was made with any recognition that the first order had been entered.

The record does not disclose if guardianship letters ever issued to Paul D. Clark in either the form directed in the April 17 order or the order of April 19 or if Paul took charge of any assets or rendered any accounting. On June 6, 1979, however, the court ordered Paul's removal and appointed one Phyllis Miller "as Guardian of Raphael W. Clark." The removal order was apparently in response to an informal conference and was not made on any application or motion of record. Letters of guardianship were issued June 13, 1979 to Phyllis Miller "to have the custody of the person and charge of the estate" of the incompetent. An inventory filed July 24, 1979 showed assets of the estate to be $65,000.00 in real property and $96,000.00 in personalty.

The next recorded event was on August 16, 1979, when a motion to set aside the judgment of adjudication was filed on behalf of the incompetent by an attorney newly entering the case. In general, the motion contended that relief should be given because Raphael had not in fact been a person of unsound mind on the date of adjudication and because of procedural errors, some of which have been noted previously in this opinion. The motion was taken up by the trial court on November 5, 1979. The record of that hearing consists primarily of argument by counsel and, with the exception of the motion disposition, is of no significance as to issues on this appeal.

Although the court informed the parties at the conclusion of the motion hearing that the matter would be taken under advisement for forty-eight hours, an order was made and entered sustaining the motion on November 5, 1979, the same date as the hearing. That order set aside the judgment ¹ and directed Phyllis Miller to "close out the Guardianship as quickly as possible." On this appeal neither party complains of prejudice because the decision was not deferred for two days as counsel were entitled to expect.

In replication of the previous duplication of orders adjudicating Raphael incompetent, the November 5, 1979 order was followed by a second order dated and filed November 16, 1979 ruling the motion to set aside the judgment. This second order in more explicit terms vacated the order declaring Raphael incompetent although without specification as to which of the adjudicatory orders was considered to have been in effect. The retrospective annulment of Raphael's adjudication also failed to provide for liabilities of the guardian incurred during the previous months when she was accountable for administration of the estate. The purpose or significance of the repetitive orders voiding the previous declarations of incompetency is not disclosed nor, from this record, discernible.

Respondent has moved to dismiss the appeal on the ground that the notice of appeal was filed out of time. For purposes of the motion, respondent appears to assume that the dispositive order was that entered November 16, 1979, while appellants in their brief assume the November 5, 1979 order to have been the judgment from which this appeal is prosecuted. The confusion is further compounded by respondent's contention that the November 16 order was a ruling on appellants' "Motion for New Trial."

Appellants did file a motion on December 4, 1979, seeking reconsideration of the court's action in declaring Raphael released from the constraints of prior adjudication. As to the November 5, 1979 order, the court still retained on December 5, 1979 the control over that judgment by virtue of Rule 75.01, but the motion had no procedural standing because more than fifteen days had elapsed since either the November 5 or November 16 entries. Rule 73.01(1)(c). Quite obviously, however, the November 16 entry could not be a ruling on appellants' "Motion for New Trial" which had not then been filed.

Fortunately, the repetition of orders in November 1979 presents no jurisdictional problem and respondent's motion to dismiss the appeal is without merit. The judgment of which appellants complain was entered November 5 and became final thirty days thereafter. Appellants had ten days from the date of finality to prosecute their appeal and the notice of appeal filed December 10, 1979 was timely. Respondent's motion to dismiss the appeal is overruled.

On this appeal, the Clark family members treat the November 5, 1979 order as one restoring Raphael and discharging him from the restraint of the guardianship. They argue that the order is deficient because no evidence was presented at the November 5 hearing showing that Raphael had recovered from the mental disability which had prompted his adjudication on April 17, 1979. Although this argument is valid, it misconceives the issue presented to the court by the August 16, 1979 motion and the content of the orders which followed.

Restoration of rights to one previously judged incompetent is governed by § 475.360, RSMo 1978, and requires, in part, the filing of a verified petition alleging that the petitioner has fully recovered his mental health. The court is thereupon obligated to hold an inquiry as to the mental condition of the petitioner and, if it be determined that he has recovered, to enter judgment accordingly. Of course, such procedure assumes a prior valid judgment of incompetency. In this case, no verified application was filed and no inquiry as to mental condition was conducted because the August 16, 1979 motion challenged the original adjudication as flawed. In sum, Raphael claimed that he had never suffered from mental infirmity and that the court had erred when it had adjudicated him as such April 17, 1979.

By the order of November 5, as well as the order of November 16, the court made no findings applicable to a claim of...