Froemke v. Carter (In re Froemke)

• Docket Number: 20220321
• Decision Date: 17 August 2023
• Citation: 994 N.W.2d 419
• Parties: In the MATTER OF the ESTATE OF Allan Herbert FROEMKE, Deceased Reginald Froemke, Personal Representative, Petitioner and Appellee v. Terry Carter and Brenda Ciccone, Respondents and Appellants and Melody A. Reams, Debra L. Reinke, Duffy A. Froemke, Carrie Mennis, Benjamin P. Froemke, Stephanie A. Nielsen, LeeJoy Froemke, Andy Froemke, Jackie Freymiller, and Daniel J. Froemke, Respondents
• Court: North Dakota Supreme Court

994 N.W.2d 419

In the MATTER OF the ESTATE OF Allan Herbert FROEMKE, Deceased

Reginald Froemke, Personal Representative, Petitioner and Appellee v. Terry Carter and Brenda Ciccone, Respondents and Appellants and Melody A. Reams, Debra L. Reinke, Duffy A. Froemke, Carrie Mennis, Benjamin P. Froemke, Stephanie A. Nielsen, LeeJoy Froemke, Andy Froemke, Jackie Freymiller, and Daniel J. Froemke, Respondents

No. 20220321

Supreme Court of North Dakota.

Filed August 17, 2023

Michael T. Andrews(argued), Fargo, N.D., and Don B. Eppler(appeared), Lisbon, N.D., for petitioner and appellee.

Will R. Budke(argued), Wahpeton, N.D., and Brandon M. Erickson(appeared), Fargo, N.D., for respondents and appellantsTerry Carter and Brenda Ciccone.

Tufte, Justice.

[¶1]Terry Carter and Brenda Ciccone appeal from a district court judgment in the informal probate of Allan Froemke's will.We affirm.

I

[¶2]Reginald Froemke, the personal representative of Allan Froemke's Estate, Terry Carter, and Brenda Ciccone are Allan Froemke's children.Reginald Froemke moved the district court to determine heirs, compute the distribution of the Estate's shares, determine debts owed by heirs to the Estate, allow the personal representative to sell property, and approve the personal representative's inventory.The court held an evidentiary hearing and issued findings, an order for judgment, and a judgment.

[¶3] Carter and Ciccone argue the district court lacked jurisdiction over a contract for deed involving Carter.They further argue the court erred in (1) finding Ciccone owed five thousand dollars to Allan Froemke's Estate, (2) its evidentiary rulings, (3) failing to address several pending issues, and (4) finding against partitioning property.

II

[¶4] Carter and Ciccone argue the district court lacked jurisdiction under Title 30.1, N.D.C.C., to order Carter to refund the Estate $1,603, because such an order was not a probate matter and the court lacked any other authority to issue this order."When the jurisdictional facts are not in dispute, the question of subject-matter jurisdiction is a question of law, and we review the jurisdiction decision de novo."In re Estate of Bartelson , 2011 ND 219, ¶ 8, 806 N.W.2d 199."If the underlying jurisdictional facts are disputed, this Court is presented with a mixed question of law and fact, and we review the question of law de novo and the district court's findings of fact under the clearly erroneous standard of review."Fredericks v. Fredericks , 2016 ND 234, ¶ 6, 888 N.W.2d 177.A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing all of the evidence, we are left with a definite and firm conviction a mistake has been made.Matter of Estate of Brandt , 2019 ND 87, ¶ 18, 924 N.W.2d 762.

[¶5] One of the purposes of the Uniform Probate Code is to make the law uniform among adopting jurisdictions.N.D.C.C. § 30.1-01-02(2)(e);N.D.C.C. § 1-02-13.To this end, we consider decisions from other jurisdictions that have interpreted parallel provisions of the code.Matter of Estate of Opatz , 554 N.W.2d 813, 816(N.D.1996).

[¶6]A district court's subject matter jurisdiction over probate matters is provided by N.D.C.C. § 30.1-02-02[Uniform Probate Code(1969)§ 1-302], which states:

The district court has jurisdiction over all subject matter relating to guardianship, probate, and testamentary matters, including:

1.Estates of decedents, including construction of wills and determination of heirs and successors of decedents.

2.Estates of protected persons.

3.Protection of minors and incapacitated persons.

4. Trusts.

In addition, N.D.C.C. § 30.1-12-05[Uniform Probate Code(1969) revised 2010 § 3-105] provides:

Persons interested in decedents’ estates ... may petition the court for orders in formal proceedings within the court's jurisdiction, including those described in chapters 30.1-12 through 30.1-23.The court has exclusive jurisdiction of formal proceedings to determine how decedents’ estates subject to the laws of this state are to be administered, expended, and distributed, including actions to determine title to property alleged to belong to the estate ....

[¶7] Under section 30.1-12-05, N.D.C.C., district courts have exclusive jurisdiction "to determine title to property allegedly belonging to the estate."Estate of Bartelson , 2011 ND 219, ¶ 11, 806 N.W.2d 199."Determining what property constitutes the estate goes to the very nature of the probate proceeding."Id."The important point is that the [district] court ... should have unlimited power to hear and finally dispose of all matters relevant to determination of the extent of the decedent's estate and of the claims against it."Official Comment, Uniform Probate Code(1969)§ 3-105.The Minnesota Court of Appeals, citing section 3-105 of the Uniform Probate Code, concluded a probate court had jurisdiction over an insurance contract between the decedent and the appellant because "the probate court has jurisdiction over all problems that arise in resolving an estate except those issues excluded by statute."In re Estate of Sangren , 504 N.W.2d 786, 788-89(Minn. Ct. App.1993).

[¶8] Personal Representative Reginald Froemke moved the district court to find Carter owed the Estate $1,603 for the payment of real estate taxes on her home by decedent.The court found $1,603 from Allan Froemke's account was paid to Ransom County for taxes billed to Carter and Carter had not reimbursed Allan Froemke's Estate.The court ordered Carter to reimburse the Estate for this amount.

[¶9] The language in N.D.C.C. §§ 30.1-02-02and30.1-12-05 is broad.District courts have "jurisdiction over all subject matter relating to ... probate."N.D.C.C. § 30.1-02-02(emphasis added).We conclude the district court has subject matter jurisdiction over this issue.

III

[¶10] Carter and Ciccone assert the district court's finding Ciccone owed the Estate $5,000 was clearly erroneous, arguing this Court should have a definite and firm conviction that a mistake was made."We will not reexamine findings of fact made by the trial court upon conflicting evidence, and a choice between two permissible views of the weight of the evidence is not clearly erroneous."Lindstaedt v. George , 2020 ND 262, ¶ 6, 952 N.W.2d 102(cleaned up).We will not reverse simply because we may have viewed the evidence differently.Id.

[¶11]The district court found Ciccone owed the Estate $5,000 and ordered her to pay this amount.The court's finding and order were based on the fact that a check payable to Ciccone for $5,000 with the word "loan" written on it was drawn in 2014.Carter and Ciccone argue the trial court's finding is clearly erroneous because they both testified the word "loan" was not in Allan Froemke's handwriting and could have been written by anyone at any time, no evidence was presented that Ciccone deposited this check, Ciccone did not recall receiving the check, Reginald Froemke testified he was not sure the check had been deposited, and no evidence was presented that this check was for a loan from Allan Froemke to Ciccone.However, the record includes Allan Froemke's bank statement, which contains an image of a check drawn to the order of Brenda Ciccone for $5,000 with the word loan written on it.This exhibit shows when the check was received for processing by Allan Froemke's bank it had "loan" written on it.This is evidence the word "loan" was already on the check when it was cashed or deposited by Ciccone.Carter and Ciccone are asking this Court to reweigh evidence.The testimony and exhibit support the court's finding, and we are not firmly convinced a mistake has been made.The district court's finding is not clearly erroneous.

IV

[¶12] Carter and Ciccone argue the district court abused its discretion by admitting and relying upon inadmissible evidence."A trial court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably, or when its decision is not the product of a rational mental process."Kershaw v. Finnson , 2022 ND 165, ¶ 6, 980 N.W.2d 40(quotations and citations omitted)."Whether or not a witness is qualified to testify as to the value of land is for the trial court to determine and will not be reversed on appeal unless it abused its discretion."Anderson v. Anderson , 368 N.W.2d 566, 569(N.D.1985).

[¶13]A party arguing for reversal because a district court admitted inadmissible evidence has a high burden on appeal from a bench trial.

In the trial of a nonjury case, it is virtually impossible for a trial judge to commit reversible error by receiving incompetent evidence, whether objected to or not.An appellate court will not reverse a judgment in a nonjury case because of the admission of incompetent evidence, unless all of the competent evidence is insufficient to support the judgment or unless it affirmatively appears that the incompetent evidence induced the court to make an essential finding which would not otherwise have been made.

Zundel v. Zundel , 2020 ND 150, ¶ 29, 945 N.W.2d 297.

A

[¶14] Carter and Ciccone argue the district court erred in admitting the appraised value of the farmland, because it was inadmissible hearsay in violation of N.D.R.Ev. 801(c) and 802.Here, Reginald Froemke testified an appraisal by Fadness Realty valued two of Allan Froemke's properties at $120,000 and $135,000.

[¶15]"Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."State v. Vickerman , 2022 ND 184, ¶ 9, 981 N.W.2d 881(citingN.D.R.Ev. 801(c)-(c)(2) ).Hearsay is inadmissible unless otherwise provided in statute or court rule.N.D.R.Ev. 802.

[¶16]Reginald Froemke argues the district court did not err in admitting statements about the appraised values, because they were admissible as a statement by the...