Head v. Head

• Citation: 507 S.E.2d 214,234 Ga. App. 469
• Decision Date: 18 September 1998
• Docket Number: No. A98A1958-A98A1960.
• Parties: HEAD et al. v. HEAD (Three Cases).
• Court: United States Court of Appeals (Georgia)

507 S.E.2d 214

234 Ga. App. 469

HEAD et al. v. HEAD (Three Cases).

Nos. A98A1958-A98A1960.

Court of Appeals of Georgia.

September 18, 1998.

Hulsey, Oliver & Mahar, R. David Syfan, Gainesville, for appellants.

Minkin & Snyder, Michael J. King, G. Brian Raley, Atlanta, for appellee.

ELDRIDGE, Judge.

Sidney A. Head, Sr. ("Ward") is an incapacitated adult, suffering dementia caused by Alzheimer's disease, who lived in Georgia until Alan L. Head, his son, under his durable health care power of attorney, moved the Ward from a nursing home in Georgia to a nursing home in Arizona. The Ward was totally demented and incompetent at least by November 10, 1992. Martha Dean Head ("Fiduciary") is the Ward's second wife, who married the Ward in 1978, who is a Jackson County resident, and who was made the guardian of the person and property of Sidney A. Head, Sr.; the petition was filed on November 15, 1993, and she was appointed on March 25, 1994. Sidney A. Head, Jr., Alan L. Head, Jenelle H. Eager, and Laura K. Head ("Head Children") are the adult children of the Ward by his first wife, who are all residents of western states, i.e., Montana, Arizona, and California.

The Head Children contend that the Ward commingled his assets with theirs, so that the assets could not be easily separated; however, there is nothing in the record to substantiate such claim.

From November 10, 1992, through November 15, 1993, prior to becoming guardian, the Fiduciary received $37,258.13 in assets of the Ward or of the assets jointly held by the Ward and the Fiduciary as wife or with a Head Child and the Ward; after becoming Fiduciary, there was no accounting for such monies. From November 15, 1993, until March 25, 1994, while the guardianship petition was pending, the Fiduciary received and has not accounted for $21,020.55 in assets, of which at least $17,806.17 went into the Fiduciary's personal account; however, there was a failure to show that such funds were not used to meet the joint needs of the Ward and Fiduciary. After being appointed fiduciary on March 25, 1994, and before March 25, 1997, the Fiduciary received $5,839.38 without making an accounting.

The Head Children and the Fiduciary entered into a settlement agreement on March 25, 1994, to resolve the issue of the Ward's funds, commingled funds, and funds of the Fiduciary, which was a settlement between the Ward, the Head Children, and the Fiduciary. However, the Fiduciary sought to declare the settlement invalid. In a declaratory judgment action between the Fiduciary and the Head Children, the trial court held that the settlement agreement was valid; however, the record is silent as to the exact terms of such agreement. The trial court also declared that the durable health care power of attorney granted by the Ward in 1991 to Alan L. Head, a resident of Arizona, took priority over the guardianship regarding health care decisions. The trial court's ruling of February 21, 1997, prompted the Fiduciary and the Head Children to enter into a second settlement agreement on March 12, 1997, as to all the parties' present and future claims and to terminate all costly litigation. Such agreement was approved on May 22, 1997, by the trial court, and was approved on July 28, 1997, by the probate court.

On May 19, 1998, the Fiduciary filed with the probate court her "final return" as guardian under the settlement agreement. The probate court on July 28, 1997, entered an order of dismissal of the guardian and approval of the final accounting submitted by the Fiduciary after considering it. The Head Children filed a notice of appeal from the probate court's order of July 27, 1997, to the superior court on August 27, 1997.

The March 12, 1997 settlement agreement provided for the resolution of the health care needs of the Ward. It also provided that the Fiduciary resign as guardian and provided that Sidney A. Head, Jr., be appointed as successor guardian. It also provided for the liquidation of the Ward's estate. It provided that the Head Children receive a minimum of $815,000 and any sums in excess of $1,040,000, if the estate was worth that sum. The agreement provided for the Fiduciary to present to the probate court a final accounting for assets that came into her hands as fiduciary, which would be approved after audit by a CPA selected by the Head Children. The agreement provided that any loans to the Fiduciary or the Fiduciary's relatives from the Ward's estate would have to be repaid or charged against the Fiduciary's share.

The 1997 annual report did not account for pre-guardian assets that either the Head Children or the Fiduciary, individually, received and only accounted for assets remaining in the Ward's estate. Subsequently, when the CPA conducted the audit after the 1997 annual report, he found $66,861.82 which went primarily into the Fiduciary's personal account prior to guardianship, but $18,681.20 of this went to the Ward and a Head Child. The Fiduciary submitted the 1997 annual report to the Jackson County Probate Court as the final accounting; the probate court accepted and approved the annual return as the final accounting on July 28, 1997, notwithstanding that these sums disbursed prior to the guardianship had not been reported or accounted for in the return.

The CPA's investigation covered a period from January 1, 1991, until March 31, 1997, which encompassed 27 months when there was no fiduciary and such periods were not covered by the final accounting under the settlement agreement. The Head Children contend that the CPA's audit showed $5,839.38 came within the guardianship and was unaccounted for, while $58,278.68 was unaccounted for prior to the guardianship, of which $18,681.20 went to a Head Child and $48,180.62 went to the Fiduciary. The Head Children wanted these assets included in the Ward's estate for purposes of the settlement agreement.

The Head Children filed a motion for contempt to enforce the May 22, 1997 order approving the settlement agreement by compelling the inclusion of the unaccounted for assets under the final accounting and to remove the Fiduciary for breach of her fiduciary duties to the Ward. The Fiduciary filed her own contempt motion against the Head Children in the declaratory judgment action regarding the March 25, 1994 settlement and the durable health care power of attorney. The Fiduciary successfully moved to dismiss the appeal from the final accounting on the basis of approval by the probate court of the 1997 annual report under the settlement agreement. The basis for the Head Children's motion for contempt was the failure to pay over on demand the unaccounted for funds of the Ward prior to the guardianship, which would swell the Ward's estate for purposes of calculation of the settlement distribution and which in effect was an action to enforce the consent judgment. The Fiduciary's contempt action against the Head Children was that they improperly withheld their approval of the final accounting, which in effect was an action to enforce the consent judgment.

All motions were heard by the trial court on December 16, 1997. The trial court ruled against the Head Children and for the Fiduciary and excluded the unaccounted for assets from the estate, which meant that $66,861.82 of the Ward's assets were retained by the Fiduciary or the Head Child. Further, the Head heirloom family silver had not been located and the trial court would not hold the Fiduciary in contempt for not delivering it.

The Head Children filed their notices of appeal on January 30, 1998, in each case. The Head Children's briefs and enumerations of error are identical for each of the appeals: A98A1958; A98A1959; and A98A1960. Therefore, they will be treated as a unitary whole.

1. The first enumeration of error is that "the trial court erred in its decisions regarding the motions, due to its erroneous construction of the term of art within the settlement agreement, `final accounting' of the guardian, which results in the breach of fiduciary duty by the guardian by failing to account for the assets of the ward." We do not agree in this case under the peculiar facts and circumstances of the settlement agreement.

"Final accounting" is generally a legal issue. However, in this case, the parties, through the two settlement agreements and the various actions in probate and superior court, have caused "final accounting" in this case to become a mixed question of law and fact.

Despite the Head Children's attempt to have these appeals reviewed on a plain error of law standard, the standard of appellate review of civil contempt cases is "any evidence." "The decision of the trial court will not be disturbed by an appellate court absent abuse of discretion. If there is any evidence from which the trial court could have concluded that its order had been violated, this court is without power to disturb the judgment. Williams v. William L. Lampkin & Co., 53 Ga. 200(4) (1874); see also Durham v. Spence, 228 Ga. 525(3), 186 S.E.2d 723 (1972); Patten v. Miller, 190 Ga. 152(5), 8 S.E.2d 786 (1940)." Ponder v. Ponder, 172 Ga.App. 372, 323 S.E.2d 210 (1984). Thus, the trial court had the right to rely upon the settlement agreement and the probate court's approval and discharge of the Fiduciary on evidentiary or legal reasons in excluding the unaccounted for pre-guardianship assets from the "final accounting," and accepting the last annual report as the substantial equivalent of the "final accounting"; such was some evidence before the trial court on the hearing for contempt.

Thus, the trial court was presented with evidence that the probate court had treated the last annual return of the guardian as the final accounting and had thereby excluded the pre-guardianship unaccounted for assets from the Ward's estate. The probate court determined unreported assets that went to the wife or the children prior to the guardianship did not have to be...