Estate of Ewing v. Bryan

• Decision Date: 13 September 1994
• Docket Number: No. WD,WD
• Citation: 883 S.W.2d 545
• Parties: In the ESTATE OF John T. EWING, Leland Coonce, Respondent, v. Ann BRYAN, Appellant. 48404.
• Court: Missouri Court of Appeals

Page 545

883 S.W.2d 545

In the ESTATE OF John T. EWING, Leland Coonce, Respondent, v. Ann BRYAN, Appellant.

No. WD 48404.

Missouri Court of Appeals,

Western District.

Sept. 13, 1994.

Kenneth O. McCutcheon, Jr., Woolsey and Yarger, Versailles for Ann Bryan, guardian and conservator, appellant.

Susan Ford Robertson, Marvin E. Wright, and David W. Walker, Knight, Ford, Wright Atwill, Parshall & Baker, Columbia for Leland Coonce, respondent.

Before SMART, P.J., and KENNEDY and ULRICH, JJ.

ULRICH, Judge.

Ann Bryan appeals an order of the Circuit Court of Cole County Probate Division, setting aside her appointment as guardian and conservator of her father's estate. Mrs. Bryan contends that the trial court erred (I) in setting aside its judgment of January 7, 1993, appointing her guardian of John T. Ewing and conservator of his estate because respondent's motion and the court's order setting aside the judgment were untimely under Rule 75.01 and (II) in terminating the guardianship and conservatorship.

Mr. Ewing is 91 years old and suffers from Alzheimer's disease. The only asset in his estate is the John T. Ewing Revocable Trust. His nephew by marriage, Leland Coonce, is the attorney in fact for Mr. Ewing and the trustee of the revocable trust pursuant to a 1991 durable power of attorney. The durable power of attorney grants him the power to revoke the trust and to nominate a guardian for Mr. Ewing. Mr. Coonce also holds a 1989 durable power of attorney giving him specific powers regarding Mr. Ewing's health care.

Appellant Bryan filed a petition on November 30, 1992, seeking appointment as guardian of her father and conservator of his estate. A guardian ad litem was appointed for Mr. Ewing and a hearing was held on December 22, 1992. The court found Mr. Ewing to be a fully incapacitated and disabled person and requested memoranda be filed on the propriety of the appointment of a guardian and conservator in view of the 1991 durable power of attorney.

On January 7, 1993, the court appointed Mrs. Bryan guardian of her father and conservator of his estate. On June 11, 1993, Mr. Coonce filed a "Motion for Termination of Guardianship and Conservatorship and, in the alternative, a Motion to Set Aside Appointment of Guardian and Conservator." Mrs. Bryan responded on July 13, 1993, with a Motion to Dismiss Respondent's Motions.

At the hearing on September 8, 1993, the court noted that (1) the 1989 durable power of attorney giving specific powers on health care issues had not been discovered at the time of Mrs. Bryan's appointment, (2) Mr. Ewing's interests were "adequately protected" through the 1989 power of attorney, and (3) it had improperly restricted interested persons from presenting evidence on their respective qualifications to serve as guardian and conservator.

The trial court held that its January 7, 1992, order appointing Mrs. Bryan guardian and conservator was irregular and that the appointment of a guardian and conservator is not necessary or in Mr. Ewing's best interests in spite of his incapacity and disability. In the alternative, in the event the January 7, 1992, order should be determined to be a valid final order not subject to collateral attack, the court held that the guardianship and conservatorship should be terminated since it was no longer necessary or in the best interests of Mr. Ewing.

The judgment is affirmed.

I

As point one on appeal, Mrs. Bryan contends the trial court was without jurisdiction under Rule 75.01 to set aside its judgment of January 7, 1993, appointing her guardian and conservator.

Rule 75.01 provides the general rule that a judgment is final thirty days after it is entered and may not be vacated, reopened, corrected, amended or modified by the trial court thereafter. Mr. Coonce filed his motion to terminate Mrs. Bryan's authority on June 11, 1993, five months after the January 7, 1993, judgment.

Rule 75.01, however, is inapplicable in probate proceedings unless the judge of the probate division orders that it shall be applicable in a particular matter. Rule 41.01(b). The judge in this case made no such directive. Therefore, Rule 75.01 is not applicable.

A final probate judgment may be attacked in a motion to set the judgment aside for irregularity. State ex rel. Baldwin v. Dandurand, 785 S.W.2d 547, 549 (Mo. banc 1990). Under § 511.250, RSMo 1986, "[j]udgments in any court of record shall not be set aside for irregularity, on motion, unless such motion be made within three years after the term at which the judgment was rendered." Rule 74.06(b) supplants § 511.250 in most civil actions but does not apply to probate proceedings. Rule 41.01. The statute, however, remains an available remedy to set aside a final probate judgment for irregularity. Baldwin, 785 S.W.2d at 549. Mr. Coonce's motion to set aside for irregularity was well within the three year time limitation of § 511.250.

Only in those cases where there is some irregularity appearing in the judgment itself or on the face of the antecedent proceeding is a motion to set aside a judgment for irregularity available. Kibbons v. Union Elec. Co., 823 S.W.2d 485, 490 (Mo. banc 1992). An "irregularity" for purposes of a motion to set aside an irregular judgment "may be said to be a want of adherence to some prescribed rule or mode of procedure, consisting either in omitting to do something that is necessary for the due and orderly conduct of the suit, or in doing it at an unseasonable time or in an improper manner." Kibbons, 823 S.W.2d at 490.

The power to appoint guardians is purely statutory. Thus, when the court exercises its authority to appoint a guardian, it must do so in accordance with the statutes. In re Estate of Dothage, 727 S.W.2d 925, 928 (Mo.App.1987) (citing In re Dugan, 309 S.W.2d 145, 148 (Mo.App.1957)).

When a petition for the appointment of a guardian or conservator is filed, the provisions of § 475.075, RSMo 1986, apply. Section 475.075 provides that the court may appoint a guardian or conservator, or both, if the court follows certain procedures. Among those procedures is the requirement of a hearing. 475.075.1.

In re Crist, 732 S.W.2d 587, 589 (Mo.App.1987) holds that the trial court abused its discretion when it summarily stopped the hearing and made an appointment of a guardian and conservator without making a full record from which the correctness of the appointment could be ascertained.

In this case, the trial court asked Mrs. Bryan and Mr. Coonce to submit memoranda of law so that the court could consider the propriety of appointing a guardian and conservator in view of the durable power of attorney which exists. The court entered its appointment without affording the parties the opportunity to be heard regarding who should be appointed guardian and conservator. The trial court, by its own admission, failed to follow the procedures set forth in § 475.075.1. The court, therefore, properly set aside its judgment of January 7, 1993, appointing Mrs. Bryan guardian and conservator.

Point one is denied.

II

Mrs. Bryan claims as point two on appeal that the trial court erred in terminating the guardianship and conservatorship of John T. Ewing. She expressed concern that the attorney in fact is also the trustee of the trust benefiting her father and, without a conservator, is accountable to no one for the expenditure of the trust's assets.

Although § 475.050, RSMo Supp.1993, appears on its face to give the judge broad discretion in appointing a guardian or conservator, § 475.050 creates a statutory hierarchy. Couch v. Couch, 824 S.W.2d 65, 70 (Mo.App.1991). Section 475.050.1 reads in pertinent part:

1. Before appointing any other person, organization or corporation as guardian of an incapacitated person, or conservator of a disabled person, the court shall consider the suitability of appointing any of the following persons who appear to be willing to serve:

(1) If the incapacitated or disabled person is, at the time of the hearing, able to make and communicate a reasonable choice, any eligible person or, with respect to the estate only, any eligible organization or corporation nominated by him;

(2) Any eligible person or, with respect to the estate only, any eligible organization or corporation, nominated in a durable power of attorney executed by the incapacitated or disabled person, or in an instrument in writing signed by the incapacitated or disabled person and by two witnesses who signed at his request, before the inception of his incapacity or disability, at a time within five years before the hearing when he was able to make and communicate a reasonable choice;

(3) The spouse, parents, adult children, adult brothers and sisters and other close adult relatives of the incapacitated or disabled person and any eligible person or, with respect to the estate only, any eligible organization or corporation, nominated in a duly probated will of such a spouse or relative executed within five years before the hearing.

Prior to the 1983 revisions of the guardianship code, no statutory preferences existed in the appointment of a guardian for persons adjudicated incompetent. Byrne v. Schneider, 808 S.W.2d 936, 940 (Mo.App.1991). In seeking to divine what the intent of the incompetent person would have been, Id. at 940, Missouri common law indicates a preference for relatives "over strangers unless the record discloses dissension in the family, adverse interests of relatives and the incompetent, the lack of business ability of the relative, or any other reason why the stranger would best serve the interests of the incompetent." Roots v. Reid, 555 S.W.2d 54, 57 (Mo.App.1977). Section 475.050.1(3), codifies the common law and creates a limited preference for the appointment of relatives as guardian and conservator of an incapacitated and disabled person. Byrne, 808 S.W.2d at 940.

Section 475.050.1(3),...