Fulton, Matter of

• Decision Date: 26 October 1993
• Docket Number: No. WD,WD
• Citation: 863 S.W.2d 931
• Parties: In the Matter of Helen FULTON, Plaintiff. Thomas A. FULTON, III, Appellant, v. John L. WALKER, Respondent. 47253.
• Court: Missouri Court of Appeals

Page 931

863 S.W.2d 931

In the Matter of Helen FULTON, Plaintiff Thomas A. FULTON, III, Appellant, v. John L. WALKER, Respondent.

No. WD 47253.

Missouri Court of Appeals Western District.

Oct. 26, 1993.

Robert James Seek, Eldon, for appellant.

John L. Walker, pro se.

Before SPINDEN, P.J., and FENNER and HANNA, JJ.

SPINDEN, Presiding Judge.

When Helen Fulton became totally incapacitated and disabled, the trial court appointed John L. Walker, an attorney, rather than her son, as her guardian and conservator. Her son, Thomas A. Fulton, III, appeals. We affirm.

In 1985, Helen Fulton requested the court to appoint James A. Grantham as her limited conservator. Grantham served as her limited conservator until he was elected associate circuit judge in Miller County. On May 14, 1992, Helen Fulton nominated Walker as limited conservator, and on May 29, 1992, Walker filed a petition for appointment of successor fiduciary with the court. On June 1, 1992, Judge Grantham appointed Walker as attorney for Helen Fulton, and on July 2, 1992, Judge Grantham appointed Walker as successor limited conservator. On August 12, 1992, Walker filed his petition to be appointed guardian of Helen Fulton. Because Judge Grantham had served as limited conservator for Helen Fulton, Judge Gary Schmidt was assigned to the case. He appointed Walker guardian ad litem of Helen Fulton for purposes of medical treatment and set a hearing for November 19, 1992. Thomas Fulton later filed his own petition for appointment as his mother's guardian and conservator.

After a hearing, the trial court appointed Walker to serve as Helen Fulton's guardian and conservator. In announcing its decision, the trial court said:

... I certainly would not be willing to find as a matter of law that either Mr. Walker, the public administrator, or you, Mr. Fulton, would be unsuited or unfit, unwilling to act. I do think that it's a question of geography, and a question of geography controlling over the statutory preference or personality.

And it really has more to do with the Court's reaction as to where will Mrs. Fulton be the most comfortable for the last years of her life. And it just seems that the Central Missouri area would be that place.

The trial court issued its "Judgment of Incapacity and Disability" in which it found that Helen Fulton was "totally incapacitated" and "totally disabled" and that "John L. Walker is the suitable and qualified person to serve as guardian ... and conservator" of Helen Fulton. The judgment, however, did not reflect what the trial court had said on the record at trial.

Thomas Fulton appeals. He claims that the trial court erred and abused its discretion in appointing Walker as guardian and conservator because it applied an improper factor, geographical location, and it did not give sufficient deference to a blood relative.

We will affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. In re Estate of Davis, 758 S.W.2d 461, 463 (Mo.App.1988). We typically disregard a trial court's oral statements made in ruling on an issue. In re Estate of Oberman, 281 S.W.2d 549, 553 (Mo.App.1955). Such statements are not part of the trial court's order or judgment and may be considered only as an explanation of the order or judgment. Green v. First National Bank of Kansas City, 173 S.W.2d 763, 764 (Mo.App.1943); Snell v. Overfelt, 307 S.W.2d 716, 720 (Mo.App.1957). However, if neither party requests that the court make specific findings of fact or conclusions of law, we must resolve all factual issues in accordance with the result reached and must affirm the judgment under any reasonable theory supported by the evidence. Brown v. Storz, 710 S.W.2d 402, 403 (Mo.App.1986).

Thomas Fulton contends that, pursuant to § 475.050, RSMo Cum.Supp.1992, he should have been given preference for appointment because he was Helen Fulton's son. Section 475.050 provides:

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:

....

(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.

2. Except for good cause shown, the court shall make its appointment in accordance with the incapacitated or disabled person's most recent valid nomination of a person qualified to serve as guardian of the person or conservator of the estate. In the event there is not brought to the attention of the court any such valid nomination executed within five years before the hearing, then the court shall give consideration to the most recent valid nomination brought to its attention, but the court shall not be required to follow such nomination.

Section 475.050.1(3) creates a limited preference for the appointment of relatives as guardian and conservator of an incapacitated and disabled person; however, that subsection is subordinate to the preferences established in § 475.050.1(1) and (2). In the Matter of Weissinger, 720 S.W.2d 430, 435 (Mo.App.1986).

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