Guardianship of Rudonick, In re

• Decision Date: 05 June 1969
• Docket Number: No. 39291,39291
• Citation: 456 P.2d 96,76 Wn.2d 117
• Parties: In the Matter of the GUARDIANSHIP OF Laura Linda RUDONICK, a Minor. Laura Linda Rodonick WILCOX, Appellant, v. Vita P. MATHEWS and Metropolitan Casualty Insurance Company of New York and Firemen's Insurance Company of Newark, New Jersey, Respondents.
• Court: Washington Supreme Court

Page 117

76 Wn.2d 117

456 P.2d 96

In the Matter of the GUARDIANSHIP OF Laura Linda RUDONICK, a Minor.

Laura Linda Rodonick WILCOX, Appellant, v. Vita P. MATHEWS and Metropolitan Casualty Insurance Company

of New York and Firemen's Insurance Company of

Newark, New Jersey, Respondents.

No. 39291.

Supreme Court of Washington, Department 2.

June 5, 1969.

Rehearing Denied Oct. 3, 1969.

Nickell, Quinn & Tuai, Liem E. Tuai, Seattle, for appellant.

Merges, Brain & Hilyer, G. Robert Brain, Karr, Tuttle, Campbell, Koch & Campbell, Coleman P. Hall, Seattle, for respondents.

NEILL, Judge.

This litigation arises, almost foreseeably, in a guardianship estate wherein there is an untrained and inexperienced parent-guardian dealing with her ward's funds without regard to her fiduciary responsibility; incomplete irregular and inaccurate accountings; and family discord. In fact, just about everything that could be done wrong in a guardianship is in this record with one notable exception--there is no evidence of wilful misappropriation of the ward's funds.

The ward, Laura Linda Rudonick Wilcox, filed a petition against her mother and guardian, Vita P. Mathews, for an accounting and for recovery of guardianship funds allegedly misapplied or unaccounted for by the guardian.

The ward's father, Mr. Rudonick, was a fireman with the San Francisco Fire Department. The pension system of the department includes survivor benefits for the support of widows and dependents. Mr. Rudonick died in June, 1947, but his wife was not eligible for the widow's pension, not having been married to Mr. Rudonick for the 2 years necessary to qualify. However, their daughter, Laura Linda Rudonick, was eligible for dependent's benefits.

Mrs. Rudonick was duly appointed guardian of the person and of the estate of Laura Linda by the Superior Court in San Francisco County, California. The guardianship was later transferred to San Diego County, California. Payments of the pension benefits for the ward commenced in 1948 and terminated on her 16th birthday in November, 1962. These payments were the sole source of funds in the guardianship estate.

Mrs. Rudonick remarried and had four children by her second husband. They were divorced and, in 1956, she married Mr. L. A. Mathews. In 1957, the family moved to Seattle, where Mrs. Mathews petitioned the King County Superior Court for appointment as guardian. She was appointed on October 11, 1957. Upon her qualification as guardian in Washington, she caused an order to be entered in the California court transferring the guardianship assets to Washington.

The ward married a man of full age on March 17, 1965, without her mother's consent, and since that date has lived away from the family home.

The California court had authorized the guardian to withdraw $125 per month for the ward's support. In November 1957, without court authorization, the guardian began withdrawing $250 per month for support of the ward.

No inventory has been filed in compliance with RCW 11.92.040(1) nor has the guardian complied with the accounting requirements of the statute. She did file three reports between the time of her appointment in 1957 and the filing of the present action. A report filed July 15, 1960, listing $9,380.57 in expenses, including $7,750 for the ward's support, was approved by the court ex parte. That order authorized the guardian to continue spending $250 per month for the ward's support. On May 13, 1963, the court approved ex parte a second report listing expenses of $6,973.80, including $6,000 for the ward's support. That order authorized continued withdrawals for support of $250 per month for a 12-month period. On May 25, 1965, a third report was approved ex parte showing $9,276.91 expenses, including $7,000 for the ward's support for for 28 months. The ward was not represented by a guardian ad litem at the hearings on any of these reports.

The pension payments to the guardian totaled $62,559.77, of which $27,991.10 was received during the Washington guardianship. Due largely to sales of securities purchased with guardianship funds in California, the actual cash received by the guardian during the Washington guardianship totaled $37,639.21.

Following the trial on the issues raised by the ward's petition, the court found that the guardian had indiscriminately used guardianship funds and that she kept few records of expenditures from the guardianship estate. No record at all was kept of how the support allowance was spent and it was apparently commingled with the general household funds. Only two receipts for expenditures were submitted at the trial, but corroborating evidence of expenditures for attorneys fees was introduced. The parties stipulated that $942 in surety bond premiums had been paid.

The court limited the hearing to transactions and activities which occurred during the Washington guardianship. The expenses and disbursements as stated in the guardian's reports, excluding $3,207 for the purchase of a cabin and related expenses, and excluding $2,000 of a $2,500 expenditure for the purchase of a Volkswagen bus, were approved by the court and the guardian given credit therefor. Judgment was entered against the guardian and her sureties for $8,075.73. The ward appeals.

Error is assigned to (1) the trial court's limitation of the hearing to matters occurring during the Washington guardianship; (2) the approval of the $250 monthly support allowance; (3) the approval of various other expenditures totaling.$3,620.48; (4) the approval of a $453.80 expense incurred during a special proceeding in March, 1962; (5) the failure of the court to include in its judgment an accountant's fee incurred by the ward in this action; and (6) the failure of the court to include interest in the judgment.

First, with respect to the California guardianship, there is nothing which prevents a Washington court from reviewing the guardian's management of the estate while in California, provided that these matters have not been the subject of a final adjudication in California. We have previously held that the superior courts, under their general equity powers, have jurisdiction to require a guardian to account for funds coming into her possession prior to her appointment as guardian. Woeppel v. Simanton, 53 Wash.2d 21, 330 P.2d 321 (1958); In re Williamson, 75 Wash. 353, 134 P. 1066 (1913). The fact that the funds came into the guardian's possession while she was under the jurisdiction of the California court is immaterial as long as our courts now have jurisdiction to require an accounting. See Ong. v. Whipple, 3 Wash.T. 233, 3 P. 898 (1882). As there has never been a final, binding settlement of the guardian's accounts and actions during the California administration, and Washington courts have jurisdiction over the parties and the subject matter, it would be a meaningless and unnecessary burden to require the parties to return to California for final settlement of those activities of the guardian.

Whether the present sureties may be held for any misappropriation which occurred in California is not before us. We only note in passing that in a proper case a surety may be held for misappropriations occurring before execution of the bond. See Owens v. McMahan, 122 Wash. 191, 210 P. 200 (1922); In re Kelley's Guardianship, 193 Wash. 109, 74 P.2d 904 (1938). The trial court has jurisdiction to rule upon whether the guardian's bond in this case covers the activities of the California guardianship.

The guardian, however, claims that the pleadings are not sufficient to raise the question of the expenditures which occurred during the California guardianship because they give no notice to either the guardian or the sureties of any claim based upon the California proceedings. We first point out that issues are no longer framed exclusively by the pleadings. We note that paragraph 5 of the petition by which the ward initiated these proceedings reads as follows:

Petitioner is entitled to and demands a complete and final accounting of the guardianship estate, a distribution of said estate and to have a judgment entered on her behalf against the said guardian and her sureties as hereinbefore named in an amount shown to have been by the said guardian misapplied, wrongfully spent and/or unaccounted for and interest thereon, as well as a termination of the subject guardianship.

(Italics ours.) The prayer of the petitioner is manifestly broad enough to include the California proceedings.

Furthermore, this same question was raised at a pretrial hearing 5 months before trial. The pretrial order specified that its purpose was 'to establish the scope of the issue at trial' and that 'the parties shall be controlled by this order in determining the extent of the accounting in the preparation and trial of this matter.' With respect to the California proceedings, that order states:

5. If, at the trial of this matter, neither party has pleaded any allegations as to the California law or the effect of that California order under the California law, then the Washington law shall apply and that California order shall be treated at the trial as an ex parte order and the matters covered thereby may be modified and reviewed upon the final settlement of the account with the ward.

The above language certainly gave notice to the guardian and her sureties that the California proceedings were going to be subject to the same review as the Washington proceedings.

Neither party has pleaded California law and it is assumed it is the same as Washington law, which is, as we next discuss, that ex parte orders are not final.

The guardian contends that the ex parte interim orders approving her expenditures are res judicata, and if not res judicata at least prima facie correct. RCW 11.92.050 provides a statutory method by which a guardian's intermediate accounts may receive judicial approval in the form of a final order. That statute provides for a...