Estate of Robbin, Matter of

• Decision Date: 31 December 1987
• Docket Number: No. 87-279,87-279
• Citation: 747 P.2d 869,230 Mont. 30
• Parties: In the Matter of the ESTATE OF George ROBBIN, Deceased.
• Court: Montana Supreme Court

Page 869

747 P.2d 869

230 Mont. 30

In the Matter of the ESTATE OF George ROBBIN, Deceased.

No. 87-279.

Supreme Court of Montana.

Submitted on Briefs Nov. 6, 1987.

Decided Dec. 31, 1987.

Murphy, Robinson, Heckathorn & Phillips; Calvin S. Robinson, Kalispell, for appellant.

M. Dean Jellison, Kalispell, for respondent.

HARRISON, Justice.

This is an appeal from an order issued by the Eleventh Judicial District Court, County of Flathead. The order was issued June 25, 1987 and removes appellant, Sharon Herron, from the position of personal representative of the estate of George Robbin. We reverse and remand.

George Robbin died on January 23, 1975. His will appointed his daughter, appellant Sharon Herron (hereinafter, Sharon), as personal representative of the estate. With the exception of one dollar, the will directed that Sharon Herron receive one-half of the estate and that her former husband, respondent Paul Herron (hereinafter, Paul), receive the remaining one-half.

A decree of distribution for the estate of George Robbin was entered January 31, 1977. Before the estate was totally distributed, Sharon and Paul became involved in a marital dispute which resulted in dissolution. The dissolution matter has appeared before this Court on two prior occasions. In Re the Marriage of Herron (Mont.1987), 736 P.2d 487, 44 St.Rep. 823; and, In Re the Marriage of Herron (1980), 186 Mont. 396, 608 P.2d 97. The estate matters were held in abeyance pending the dissolution proceedings. Following the final resolution of the dissolution, Paul contended he was entitled to a distribution of $52,250 from the estate of George Robbin. After failing to receive the amount which was allegedly owed, Paul petitioned the District Court to remove Sharon as the personal representative of the estate on June 3, 1987. Paul based his petition on the grounds that Sharon was not properly distributing the estate and that Sharon may have spent the remaining assets of the estate.

The District Court heard oral arguments on the petition June 18, 1987. Although the District Court took judicial notice of the court file containing the Herron dissolution proceeding, no evidence or testimony was received at the hearing. On June 25, 1987, the District Court entered an order removing Sharon from her position as personal representative. The District Court found:

[T]hat a Decree of Distribution was entered in this proceeding more than ten years ago; that there is nothing in the Court file to indicate that such distribution has been accomplished; that there is no evidence before this Court that distribution has been made; that there is apparent conflict between the parties; that good cause exists for termination of the appointment of Sharon Herron as Personal Representative.

The order provided that the District Court would choose a new personal representative if the parties could not agree to one within fifteen days.

The sole issue presented on appeal is whether it was appropriate for the District Court to remove Sharon as the personal representative of the estate of George Robbin.

In the Herron dissolution proceedings, the District Court divided the marital estate and a portion of the division received by Paul was an amount of $52,250 which represented one-half of the Robbin estate. The division of the marital estate was affirmed by this Court. In Re the Marriage of Herron (Mont.1987), 736 P.2d 487, 44 St.Rep. 823. It is this award of $52,250 which Paul is now contending Sharon should distribute from the estate of George Robbin. Sharon's position is that Paul has already effectively received the distribution. Although it is not entirely clear how this distribution has allegedly occurred, Sharon contends that during the process of dissolution she traced the remaining estate assets of the Robbin estate "to either Paul, herself, or their present form." Sharon states that when the District Court divided the marital estate it "took the method of disposal into account and held that she had transferred everything to Paul to which he was entitled." There is some support for this position because the District Court, in response to a motion to amend the findings of fact and conclusions of law, issued an order September 4, 1986 which noted that both parties to the dissolution had received all of the assets to which they were entitled under the dissolution decree. Sharon alleges that the only thing remaining to be performed under the dissolution is that Paul is obligated to transfer certain real property to her.

Although this matter appears before us as an issue related to estates and probate, the real controversy is an extension of the Herron dissolution. It is tempting to end this matter and determine whether Paul is actually entitled to the distribution that he seeks to receive, but we will not do so. It would be difficult, if not impossible, to determine which calculations are correct without receiving the record of the dissolution. Although counsel has provided us with certain portions of the dissolution file, the entire record was not provided. Additionally, the sole question presented on appeal is whether Sharon was properly removed as personal representative. Therefore, we will focus our decision on this question only, despite the fact that further litigation will result in a case which probably should have concluded long ago.

Sharon contends that the District Court order is unsupported by any evidence or testimony. The District Court heard oral arguments from counsel on June 18, 1987 and took judicial notice of the dissolution file, but no evidence was received. Sharon states that despite the lack of evidence presented, the District Court erroneously concluded that there was no evidence that the proper distributions were made, that there was a conflict between the parties, and that good cause...