Estate of Powell v. Roper

• Decision Date: 19 February 2008
• Docket Number: No. WD 67481.,No. WD 67285.,No. WD 67286.,No. WD 67482.,WD 67285.,WD 67286.,WD 67481.,WD 67482.
• Citation: 245 S.W.3d 280
• Parties: In the ESTATE OF Mykene M. POWELL and Asya M. Powell; Harry D. Williams, Appellants, v. Judge Ellen S. ROPER; John Lister Whiteside, Respondents.
• Court: Missouri Court of Appeals

245 S.W.3d 280

In the ESTATE OF Mykene M. POWELL and Asya M. Powell; Harry D. Williams, Appellants, v. Judge Ellen S. ROPER; John Lister Whiteside, Respondents.

No. WD 67285.

No. WD 67286.

No. WD 67481.

No. WD 67482.

Missouri Court of Appeals, Western District.

February 19, 2008.

Harry D. Williams, Columbia, pro se.

John Lister Whiteside, Columbia, for respondents.

Before VICTOR C. HOWARD, Chief Judge, PATRICIA BRECKENRIDGE, Judge¹ and JOSEPH M. ELLIS, Judge.

JOSEPH M. ELLIS, Judge.

Harry D. Williams appeals four judgments issued by the Honorable Ellen S. Roper in the Probate Division of the Circuit Court of Boone County disapproving annual settlements and holding Appellant liable for expenditures from the estates of Asya M. Powell and Mykene M. Powell.

Ural B. Powell and Ethel Ruth Powell had one natural child and nine adopted children, including Asya and Mykene (together, "the Children"). In September 2000, Mr. and Ms. Powell passed away within three days of each other. The Children initially lived with one of their older sisters, who became the payee for the Children's social security income. They began living with Appellant and his wife, who are the Children's brother-in-law and sister, in the summer of 2001, and Appellant's wife eventually became the payee for their social security income. Appellant and his wife were appointed as co-guardians in September 2003, and Appellant was appointed as conservator of the Children's estates on December 29, 2003.

In February 2005, Appellant submitted an annual settlement for each of the Children's estates for the period from December 31, 2003, through December 31, 2004 ("the 2004 settlements"). The probate court audited the settlements, and the probate clerk informed Appellant that he should have requested prior approval from the court for the expenditures listed in the settlements. Appellant then filed a Motion to Grant Monthly Expense Allowance in the amount of $600 for each child and resubmitted the 2004 settlements on May 13, 2005.

The court held a hearing on September 26, 2005, regarding the expenditures and Appellant's motions to grant a monthly expense allowance. As a result of the hearing, Appellant was ordered to submit receipts for the expenditures. Appellant provided a partial bank statement and credit card statement, approximately 100 cash register receipts from 2004, and a "log" to organize some of the receipts.

On January 30, 2006, Appellant submitted an annual settlement for each of the Children's estates for the period from December 31, 2004, through December 31, 2005 ("the 2005 settlements"). The probate court also audited these settlements.

On February 28, 2006, the court entered its orders disapproving all of the expenditures listed in the 2004 settlements for the reason that Appellant had failed to provide "receipts that coincide with cash disbursements." The disapproved expenditures totaled $7,300 for Mykene and $7,750 for Asya. These amounts were described as "General Expenses," "school clothes," "basketball shoes and uniform," "pictures and extra school activities," "birthday," and "Christmas expenses." The court appointed a conservator ad litem and set a hearing date to determine Appellant's liability for the disapproved expenses.

Appellant subsequently submitted a list of 48 checks purportedly written on behalf of the Children in 2004 and 2005, copies of cancelled checks for the majority of those amounts and several additional checks, and a few additional receipts and invoices to support his withdrawals from the Children's accounts.

The court held a hearing on Appellant's liability for the disallowed expenditures on June 29, 2006, and issued its orders and judgments concerning the 2004 settlements on the next day. The court found that Appellant had breached his fiduciary duties as conservator by making cash withdrawals from the Children's estates and failing to file receipts for all of those withdrawals. For Mykene, the court found that Appellant withdrew $7,300 and failed to file receipts for $6,300; for Asya, the court found that Appellant withdrew $7,750 and failed to file receipts for $6,250 of the withdrawals. Accordingly, the court disapproved the 2004 settlements and entered judgment in favor of the Children's estates and against Appellant in the amount of $6,300 for Mykene and $6,250 for Asya. The court also granted Appellant's motion for monthly expense allowance in the amount of $450 for each child effective May 13, 2005, excluding expenses for medical and dental care and for clothing and shoes, which were to be paid by check directly to the provider or vendor. The court also taxed a fee of $275 per child for the conservator ad litem against Appellant personally.

The court subsequently reviewed the 2005 annual settlement documents in light of the evidence that was presented at the June 29, 2006 hearing. On August 22, 2006, the court issued its judgments disallowing all of the expense credits listed in the 2005 settlements, for a total of $7,610 for each child. The disallowed amounts were described as "General Expenses," "school supplies and clothes," "spring break and shopping," "travel expenses," and "Christmas" expenses. The judgments were based on a finding that "[n]o corresponding receipts have been filed nor was prior court approval requested." The court credited a setoff for the monthly allowance of $450 per child as of May 13, 2005, or $4,010 each, leaving a balance of $3,600 per child. Accordingly, the court entered judgment in favor of each of the Children's estates and against Appellant in the amount of $3,600 each. The court also taxed the conservator ad litem's costs and fees in an unspecified amount against Appellant personally.

Appellant timely appealed the two June 30, 2006 judgments and the two August 22, 2006 judgments. The four appeals were consolidated by this Court.

"A court-tried probate case is reviewed under the standard of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976)." In re Estate of Schooler, 204 S.W.3d 338, 342 (Mo.App. W.D.2006). "Under that standard, the probate court judgment will be sustained `unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.'" Id. (quoting Murphy, 536 S.W.2d at 32).

Appellant asserts six points of error, five of which concern the court's rulings disallowing the expenditures listed in the 2004 and 2005 settlements and holding him liable for those amounts. Because his arguments on these issues are inextricably intertwined, we will address them together.

In his first point, Appellant contends that the court's orders disallowing the expenditures were against the weight of the evidence and were a misapplication of the law because the evidence clearly shows that the expenditures were made for the Children's necessaries as part of Appellant's duty as the Children's guardian. We note that the court's rulings were not based on a finding that the expenditures were not for necessaries but, rather, that Appellant had failed to provide receipts to support the expenditures. In the second set of judgments, the court further found that Appellant had failed to request prior approval of the expenditures. Appellant attacks each of these bases for the court's judgments in Points III and II, respectively. In his fourth point, Appellant contends that the court's rulings improperly require him to expend his own resources to support the Children. Finally, Appellant argues in Point VI that the court's rulings improperly amount to a punishment or penalty assessed against him for failing to strictly follow procedures.

The probate code as it relates to guardianships and conservatorships was substantially revised in 1983. As noted by one commentator, the Guardianship Code Revision structured "the law to meet the unique needs of each distinct individual. . . . [T]he law has been made to fit the people it is meant to serve." John A. Borron, Jr., The Guardianship Code Revision: An Overview, 39 J.Mo.Bar 453, 460-61 (1983). But while the revisions were extensive, the fundamental approach to the purposes of guardianships and conservatorships, and the powers and duties of guardians and conservators, remain essentially unchanged. Thus, the pre-1983 case law generally applies equally to issues before and after the 1983 revisions.

As noted above, Appellant was appointed as both co-guardian of the Children and conservator of their estates. As guardian, Appellant is directed to "provide for the ward[s'] education, support and maintenance." § 475.120.1.² As conservator, Appellant is required to, "under supervision of the court, protect, preserve and manage the estate, invest it, . . . account for it faithfully, [and] perform all other duties required of him by law, and at the termination of the conservatorship deliver the assets of the protectee to the persons entitled thereto." § 475.130.1. The probate code provides that "[t]he court may make orders for the management of the estate of the protectee for the care, education, treatment, habilitation, support and maintenance of the protectee . . ., according to his means and obligation, if any, out of the proceeds of his estate," and that such appropriations "shall be paid from the personal property or income of the estate." § 475.125(1)-(2). These provisions were substantially the same before the 1983 amendments.³

Our Supreme Court summarized the difference between a guardianship and a conservatorship in Williams v. Vaughan, 363 Mo. 639, 253 S.W.2d 111 (1952):

As guardian it was [the appellant's] duty to take charge of his ward and to arrange for a suitable home, food, clothing and other necessaries, the reasonable value of which is a proper charge against the ward's estate. The curator [i.e., conservator] is charged with the care and management of the ward's estate, subject to the superintending control of the...