Estate of Tallman, Matter of, No. 19702

• Court: Supreme Court of South Dakota
• Writing for the Court: SABERS
• Citation: 562 N.W.2d 893,1997 SD 49
• Parties: In the Matter of the ESTATE OF Lawrence J. TALLMAN, also known as L.J. Tallman, Deceased. . Considered on Briefs
• Decision Date: 24 March 1997
• Docket Number: No. 19702

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562 N.W.2d 893 1997 SD 49 In the Matter of the ESTATE OF Lawrence J. TALLMAN, also
known as L.J. Tallman, Deceased. No. 19702. Supreme Court of South Dakota. Considered on Briefs March 24, 1997.
Decided April 30, 1997.

A.N. Buckmeier, Bormann, Buckmeier, Bauer & Todd, Mobridge, for Douglas Tallman.

Andrew Aberle, Aberle & Aberle, Timber Lake, for Linda Tallman.

Curtis W. Hanks, Lemmon, for Irma Mundhenke.

SABERS, Justice.

¶1 Former administrator of Estate appeals judgment requiring him to remit to Estate 1) $17,436.90 for amount he transferred from Estate and allegedly did not repay; 2) $6,889.83 for interest unnecessarily owed to State of South Dakota by Estate because he failed to timely pay inheritance tax; and 3) $5,000.00 for amount he paid himself in administrator's fees. We affirm issues 2 and 3 but reverse issue 1. Administrator's motion for appellate attorney's fees is denied.

FACTS

¶2 This matter involves the probate of the Estate of Lawrence J. Tallman, who died June 26, 1980. Douglas Tallman (Douglas) was appointed administrator August 19, 1980 and acted in that capacity until an Order Revoking Letters of Administration was filed December 5, 1990 nunc pro tunc to August 9, 1988.

¶3 Douglas filed an accounting of the Estate on December 4, 1987, covering the period from August 20, 1980 through August 1987. Irma Mundhenke (Mundhenke), an heir to the Estate, objected to the accounting on the basis that Douglas:

1. Failed to make an annual accounting;

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2. trafficked in Estate funds by transferring $95,000.00 to the Douglas Tallman Trust (Trust);

3. repaid the Estate only $77,563.10 from the Trust, leaving a balance due the Estate in the amount of $17,436.90;

4. untimely paid the State of South Dakota inheritance tax, resulting in an unnecessary debt of interest owed by the Estate in the amount of $6,889.83;

5. paid himself $5,000.00 in administrator's fees.

A hearing was held June 22, 1988. The trial court issued a memorandum decision July 11, 1988 and entered Findings of Fact and Conclusions of Law on August 9, 1988; both documents essentially agreed with Mundhenke's objections and ordered Douglas to remit to the Estate $17,436.90 as repayment for funds transferred to the Trust, $6,889.83 for the interest due the State of South Dakota, and $5,000.00 in administrator's fees disallowed by the court.

¶4 Douglas did not file proposed Findings of Fact and Conclusions of Law, nor did he object to those entered or those proposed by Mundhenke or the Estate. He did not request a new hearing. He did, however, send to the trial court several documents which he claimed would corroborate his testimony at the hearing; these documents were received by the court on September 12, 1988 (two months after the memorandum decision was entered, and one month after the Findings of Fact and Conclusions of Law were entered). Included with those documents are photocopies of what appears to be a duplicate check register, one dated June 17, 1983, showing a check paid from the Trust to the Estate in the amount of $20,000.00, and another dated January 3, 1984, showing a similar check in the amount of $700.96. The trial court forwarded the letter and the documents to the circuit court clerk, with instructions to file them and send copies to the attorneys of record. The documents are included in the record. A photocopy of the 1983 canceled check is included in Douglas' brief.

¶5 Douglas claims the trial court overlooked these entries in the accounting and erred in ordering him to pay the Estate $17,436.90. In other words, he claims he paid the $95,000.00, plus interest, to the Estate before he submitted the accounting.

¶6 For some inexplicable reason, judgment was not entered until January 18, 1996 and not filed until May 2, 1996, the same date notice of entry of judgment was filed. This appeal followed.

STANDARD OF REVIEW

¶7 "The failure of an appellant to object to findings of fact and conclusions of law and to propose his or her own findings, limits review to the question of whether the findings support the conclusions of law and judgment." In re Estate of Chilton, 520 N.W.2d 910, 914 (S.D.1994) (citing Huth v. Hoffman, 464 N.W.2d 637, 638 (S.D.1991); GMS, Inc. v. Deadwood Social Club, 333 N.W.2d 442, 443 (S.D.1983); In re Application of Veith, 261 N.W.2d 424, 425 (S.D.1978)). Therefore, our review of the issues is confined to whether the trial court's conclusions of law and judgment ordering Douglas to reimburse the Estate are supported by the findings of fact. Id.

¶8 1. WHETHER THE FINDINGS OF FACT SUPPORT THE TRIAL COURT'S CONCLUSION THAT DOUGLAS STILL OWED THE ESTATE $17,436.90.

¶9 As a general rule, we may not consider the documents sent to the trial court after the trial court entered its judgment, since it did not consider them in reaching its decision. "Prior to claiming error on appeal, the trial court should have the opportunity to rule on the matter." State v. Vandergrift, 535 N.W.2d 428, 431 (S.D.1995) (quoting State v. Jones, 521 N.W.2d 662, 670 (S.D.1994)); see also State v. Boutchee, 406 N.W.2d 708, 710 (S.D.1987) ("The appellant must affirmatively establish a record that shows error and that the trial court was given an opportunity to correct it.").

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¶10 In Douglas' accounting of the Estate, there are records of receipts and disbursements for each year. The trial court found that Douglas transferred $55,000.00 and $40,000.00 from the Estate to the Trust, as evidenced by the accounting. Both of these transfers occurred in 1983. The court credited Douglas $77,563.10 for returns to the Estate by looking to the "receipts" section of the 1983 accounting. However, there is another entry in the 1984 "receipts" section (January 3) with a nearly identical notation, attributing a $700.96 deposit to the Trust. The trial court must have inadvertently overlooked this entry, as there is no reason to exclude it while including the others. Therefore, we agree with Douglas that the trial court erred in not crediting him with the January 1984 payment, and...