In re Benson

• Decision Date: 21 January 2004
• Docket Number: No. 25209.,25209.
• Citation: 124 S.W.3d 79
• Parties: In the Matter of Wanda L. BENSON, Marilyn S. Schmidt, Appellant, v. Melissa A. Benson, Personal Representative of the Estate of Richard Benson, Respondent.
• Court: Missouri Court of Appeals

124 S.W.3d 79

In the Matter of Wanda L. BENSON,

Marilyn S. Schmidt, Appellant, v. Melissa A. Benson, Personal Representative of the Estate of Richard Benson, Respondent.

No. 25209.

Missouri Court of Appeals, Southern District, Division One.

January 21, 2004.

Lee E. Poppen, Lathrop & Gage, L.C., Springfield, for Appellant.

Douglas D. Lee and John E. Price, Carnahan, Evans, Cantwell & Brown, P.C., Springfield, for Respondent.

ROBERT S. BARNEY, Presiding Judge.

Appellant Marilyn S. Schmidt ("Appellant"), appeals from the judgment of the Probate Division of the Circuit Court of Christian County ("Probate Court"), which appointed the Public Administrator of Christian County ("Public Administrator") as guardian of Appellant's mother, Wanda L. Benson ("Wanda"), pursuant to section 475.079, after determining that Wanda was disabled and incapacitated.¹ See § 475.010(4), (9). She assigns no error to the Probate Court's appointment of the Public Administrator as the conservator of Wanda's estate.

In her sole point on appeal, more fully discussed below, Appellant maintains that the Probate Court abused its discretion by its appointment of the Public Administrator as guardian of Wanda. She argues the Probate Court ignored the statutory hierarchy set out in section 475.050.1(3), together with its preference for appointment of qualifying family members, such as herself, as guardian. She also asserts that the Probate Court did not in any way indicate that the "preference should be disregarded due to deficiencies on the part of Appellant."

The record reveals that Wanda was eighty-two years old at the time of the hearing in this matter and had been diagnosed as suffering from dementia. At the time of the hearing, Wanda had three living children: Appellant, who resided in Agoura Hills, California; Carol Tulleys, ("Carol"), from Prescott, Arizona; and Richard Benson, ("Richard"), who resided in Clever, Missouri. A fourth child, Jackie, passed away in 2000. Wanda had resided with Jackie for many years prior to his death.

On or about August 1, 2002, Wanda's son, Richard, with whom Wanda was living at the time, filed an application seeking to have a guardianship and conservatorship established for his mother. He sought the appointment of both offices. His sister, Appellant, then filed her application requesting she be named conservator and guardian for their mother, Wanda.

At the September 5, 2002, hearing, testimony was presented relating to Wanda's previous living arrangements, her tendency to move among the homes of her children when she became dissatisfied with them, her increasing inability to manage her finances, and her lack or inability to care for her personal hygiene.

The record shows that while Wanda had lived with both Carol and Richard on several previous occasions, she had never before resided with Appellant. Additionally, there was voluminous testimony from the siblings regarding their consistently, acrimonious relationships with one another and the strained associations they have maintained as a result of their mother Wanda's advancing age and her often inconsistent desires as to her residency and finances. Among the family problems elucidated at trial were recitations of long-term family disagreements; accusations and fears that one sibling or another would not allow access to Wanda were she to reside with one or the other; testimony regarding significant periods when the siblings had no contact with each other or their mother; allegations regarding undue influence over their mother's legal, medical, and financial affairs; and general concerns that their mother would not be adequately cared for by one or the other of the parties to this matter.

While there was much testimony centering around dissension between Appellant and her brother, Richard, there was also testimony relating to disagreements between Appellant and her sister, Carol, who technically is not a party to this action. The record shows that Carol had an estranged relationship with Appellant and expressed doubts about whether, in the event Appellant was appointed guardian, Appellant would permit visitation with her mother, Wanda. Also, testimony revealed that Carol was greatly concerned about Appellant's emotional ability to care for Wanda. Appellant admitted that she and Carol have communicated only once since 2000 and the time of the hearing, and then only about the pending litigation.

On the other hand, Appellant also accused Carol of attempting to thwart any communication between Appellant and Wanda.

Wanda's appointed guardian ad litem recommended that Wanda remain in Missouri. In its judgment, the Probate Court determined that "Pat Wright, the duly elected Public Administrator of Christian County, Missouri, is a suitable and qualified person to serve as guardian of the person and conservator of the estate," and set out that, "[Wanda's] condition requires placement in the following type of living situation to be selected by [Wanda's] guardian: [son] Richard Benson ... 1582 Green Valley Road, Clever, Missouri 65631." This appeal followed.

On Appellate review, we will not overturn the ruling of the Probate Court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously applies or declares the law. Estate of Ewing v. Bryan, 883 S.W.2d 545, 550 (Mo.App.1994); see Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). On review of a court tried case, "due regard is given the opportunity of the trial court to judge the credibility of the witnesses." Matter of Hancock, 828 S.W.2d 707, 708 (Mo.App.1992). "Furthermore, `we accept as true all evidence which is favorable to the prevailing party, including all inferences reasonably deducible therefrom, and we disregard any contradictory evidence.'" Matter of Mitchell, 914 S.W.2d 844, 847 (Mo.App.1996) (quoting Matter of Walker, 875 S.W.2d 147, 151 (Mo.App.1994)). This Court sets aside a judgment on the grounds that it is against the weight of the evidence only when we have a firm belief that the judgment is wrong. Flathers v. Flathers, 948 S.W.2d 463, 465 (Mo.App.1997).

Section 475.050, which governs the appointment of a guardian or conservator for a disabled or incapacitated person, states in pertinent part:

1. Before appointing any other eligible person 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:

(1) If the incapacitated or disabled person is, at the time of the hearing, able to make and communicate a reasonable choice, any eligible person nominated by the person;

(2) Any eligible person nominated in a durable power of attorney ...;

(3) The spouse, parents, adult children, adult brothers and sisters and other close adult relatives of the incapacitated or disabled person;

(4) Any other eligible person ... nominated in a duly probated will....

The foregoing statutory preferences are not absolute and are subject to the sound discretion of the trial court. In re Estate of Wood, 852 S.W.2d 867, 868 (Mo.App.1993); see Keyser v. Keyser, 81 S.W.3d 164, 170 (Mo.App.2002).

While section 475.050.1(3) creates a limited preference for the appointment of relatives as guardian and conservator of an incapacitated and disabled person, that subsection is subordinate to the preferences established in section 475.050.1(1) and (2). Matter of Fulton, 863 S.W.2d 931, 933 (Mo.App.1993). Furthermore, the preference for family members is not unquestionable, and exceptions do exist. "The rule is that relatives should be appointed over strangers as a guardian unless the record reveals evidence of dissension in the family, adverse interest of the relatives and the incompetent, the lack of business ability of the relative, or any other reason why the stranger would best serve the interests of the incompetent." Id. at 934; Roots v. Reid, 555 S.W.2d 54, 57 (Mo.App.1977); see also In re Estate of Wood, 852 S.W.2d at 868. The decision of whom to appoint as conservator or guardian lies within the sound discretion of the trial court. In re Estate of Wood, 852 S.W.2d at 868.

In her point relied on, Appellant contends that under section 475.050.1(3), she should have been given preference for appointment because she is Wanda's daughter. Moreover, she asserts the trial court lacked any discernable reason for its deviation from the statutory presumption in favor of a family member.

While the Probate Court failed to recite its rationale for its holding in the judgment, and none of the parties appear to have requested specific findings of fact and conclusions of law, the Probate Court judge did give a fairly explanatory oral ruling.² In his oral pronouncement he specified that since Wanda had previously failed "to find happiness" in Arizona or Missouri, "the natural thing to do would be to try it in California" with Appellant, although there was no certainty she would be any happier there. In indicating his hesitation to appoint Appellant guardian, the Probate Court judge reasoned that it would "be sending [Wanda] to an environment that she hasn't been in yet. And given her past history of being places four weeks, or four months, she may not be happy there ... [a]nd frankly it may not work out there." He also related that Wanda would be required to "start up a whole new life in an unfamiliar environment" and if she were unhappy there, the court would be faced with having to resolve the situation with both the guardian and the ward "2000 miles away." While Wanda's guardian ad litem revealed Wanda wanted to go to California, the Probate Court judge noted that she had never visited Appellant's home, and Appellant herself testified "she's not had a lot of contact [with her mother] for two years." The Probate Court judge acknowledged that the parties were "all intelligent, reasonable people, who have differences of...