In re Adam, 29359-a-PJD
| Decision Date | 22 September 2021 |
| Docket Number | 29359-a-PJD |
| Parties | IN THE MATTER OF THE GUARDIASHIP AND CONSERVATORSHIP OF ALMON G. ADAM, A Protected Person. |
| Court | South Dakota Supreme Court |
CONSIDERED ON BRIEFS FEBRUARY 17, 2021
APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT YANKTON COUNTY, SOUTH DAKOTA THE HONORABLE TAMI A. BERN Judge
JASON R. SUTTON DAVID J. HIEB of Boyce Law Firm, LLP Sioux Falls South Dakota Attorneys for petitioners and appellants Ronald Adam, Ruth Reiser, and Rebecca Thaler.
KEVIN J. LOFTUS of Kennedy, Pier, Loftus & Reynolds, LLP Yankton, South Dakota Attorneys for conservator and appellee First Dakota National Bank.
DANIEL K. BRENDTRO ROBERT D. TRZYNKA of Hovland, Rasmus, Brendtro & Trzynka, Prof. LLC Sioux Falls, South Dakota Attorneys for interested persons and appellees Roland and Susan Adam.
[¶1.] In this guardianship and conservatorship action, the conservator filed a motion for approval of a settlement agreement reached in a separate civil action brought by the conservator against the protected person's son and daughter-in-law. Three of the protected person's other children objected to the motion and requested that they be allowed to present live testimony at the hearing on the conservator's motion. The circuit court denied the request but continued the hearing to allow the children to submit affidavits and briefs. After the hearing, the court granted the conservator's motion for approval of the settlement. The objecting children appeal, asserting the circuit court erred in denying an evidentiary hearing and in approving the settlement agreement. We affirm.
[¶2.] Almon Adam has seven adult children: Robin Brooks, Roxanne Evans, Roland Adam, Rebecca Thaler, Ronald Adam, Ruth Reiser and Ralph Adam. Almon's wife and the children's mother, Joy, passed away from cancer in 1978. After Joy's death, Almon asked Roland to stay on the farm and help with the farming operation and with raising his younger siblings. Roland was 20 years old at the time, and two of the older Adam children were away at college. According to Roland although he was the one who primarily helped his father, his siblings pitched in, especially as they got older. Eventually, Roland got married and moved away from home, but he continued to farm with Almon.
[¶3.] Being together as a family was very important to Almon. Ruth testified that the family members would gather routinely for holidays, stayed in regular communication with each other and with Almon, and for over 35 years, met annually for a family campout at the farm. However, in 2010 or 2011, when Almon was approximately 80 years old, the family dynamic began to change for the worse and became strained over the next several years. By this time, Almon had moved from the farm to a house in Pickstown, South Dakota. Ronald, Ruth, Rebecca, Ralph, Roxanne, and Robin (the six children) felt as though Almon was being less open with them on matters he was normally very open about, including his estate. The six children also became concerned that Roland was trying to alienate Almon from them. Roland spent the most time with Almon, and Almon relied on him for assistance. According to Roland, he would help Almon anytime Almon asked, while his other siblings would not.
[¶4.] In September 2015, Almon's driving privileges were revoked, and without the ability to drive, he could no longer continue taking care of his needs on his own. In October 2015, Almon moved in with Roland and his wife, Susan, while he waited for an opening at an assisted living center in Yankton, South Dakota. Around this same time, Almon hired an attorney, Tim Whalen, to assist him on a number of issues, one of which related to the selling of his house in Pickstown. When Ronald and Robin were visiting Almon, they saw a draft purchase agreement and questioned him about his decision to sell the house. Almon told them that he was selling it to his neighbors, Jeff and June Reinders. Ronald and Robin pressed Almon to give additional details, but he told them he did not want to talk about it further. Thereafter, Robin and Ronald asked Almon's previous attorney to talk to Whalen about whether Almon was competent to handle his affairs, including the sale of the house. Whalen investigated the children's claims and concluded that Almon was competent. On November 22, 2015, Almon completed the sale of his house in Pickstown to his neighbors.
[¶5.] The six children continued to have concerns that Almon was not able to handle his affairs and that Roland was isolating Almon from the rest of the Adam family. They also had concerns that Roland was improperly influencing Almon's estate planning. They had tried to get information from both Almon and Roland about Almon's finances and estate matters, but neither would answer their questions. Consequently, they obtained counsel in January 2016, who sent Almon and Roland a letter "to try to re-establish mutual respect between all members of this family and avoid litigation." The letter related the children's concerns about various transactions, including the sale of the house, and requested that Almon and Roland provide the closing statement from the sale of the house, a list of gifts and transfers of money and personal property from Almon to Roland since 2011, an itemization of Almon's property stored at Roland's house, and assurances that they would have future access to Almon's personal information. Whalen responded to the letter for both Almon and Roland, and eventually, the family members agreed to hold a meeting. The meeting, at which all seven children and Almon attended, did not resolve the six children's concerns.
[¶6.] In April 2016, Almon, who was then 86 years old, transferred an 18- acre tract of land, called the "horse pasture," to Roland. According to Whalen, Almon had told him on numerous occasions after he began representing him in the fall of 2015 that he wanted to give Roland the horse pasture. On April 6, 2016, Almon asked Whalen to prepare the deed transferring the land. At this same meeting, Almon indicated to Whalen that he wanted to change his estate plan. Whalen refused to assist Almon with either of these tasks based on his belief that the six children intended to seek a guardianship and conservatorship over Almon. Ultimately, Roland's long-time friend, who worked as the Deputy Register of Deeds for Bon Homme County, drafted the deed and instructed Almon on how to register it. On April 14, 2016, Roland and Almon traveled to the Gregory County Register of Deeds Office, where Almon executed and recorded a warranty deed conveying the horse pasture to Roland. Almon did not tell Whalen about the transfer.
[¶7.] On April 29, 2016, Rebecca, Ruth, and Ronald (the Petitioners) petitioned for the appointment of a guardianship and conservatorship over Almon. They proposed that Ronald be appointed as conservator and Robin be appointed as guardian. Almon, through Whalen, objected to the petition; however, after Almon underwent a medical evaluation, he withdrew his objection. He agreed that he met the criteria for appointment, but he disagreed that either Ronald or Robin should be appointed and proposed his own nominations, including the South Dakota Guardianship Program and First Dakota National Bank.
[¶8.] The circuit court held an evidentiary hearing on February 21, 2017. The six children in favor of the petition testified, giving the circuit court a history of the children's close relationship with Almon and his previous openness about his finances and estate planning. They further testified and offered documentary evidence about specific instances of family discord and why they believed Roland was improperly influencing Almon. Roland and Susan also testified. According to Roland, Almon relied on him because he could not rely on any of the other children. He also testified that his siblings did not visit Almon frequently when he lived in Pickstown, which upset Almon, and that after he moved to the assisted living center, his siblings visited him even less often.
[¶9.] At the conclusion of the hearing, the circuit court issued an oral ruling, which was later incorporated in its findings of fact and conclusions of law. The court found that prior to 2010 or 2011, Almon had a good relationship with all of his children and any favoritism toward Roland "was minimal." However, the court found that the evidence supported that Roland and Susan "have made a conscious and consistent effort to isolate Almon from the rest of the Family" and "have not encouraged the free flow of information regarding Almon or his estate from late 2010 to present." The court determined that Roland and Susan were therefore not eligible to act, respectively, as conservator and guardian over Almon. The circuit court concluded that it would be in the best interest of Almon to appoint Robin as guardian and First Dakota National Bank as conservator, rather than Roland, given the discord in the family related to finances.
[¶10.] The Conservator filed its initial inventory with the circuit court on June 1, 2017. The Petitioners objected to the inventory, asserting that it should have included the horse pasture because Almon did not have the capacity to transfer it and because the transfer was a product of Roland's undue influence or of fraud in the inducement or execution. They also asserted that the inventory should have included a claim against Roland for the return of Almon's cash and personal items based on their recent discovery that after they filed the petition for guardianship and conservatorship Almon began withdrawing substantial sums of money from his savings account. The Conservator responded to the Petitioners' objections, indicating it was...
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