In re Estate of Elliott, 99SA306.
| Decision Date | 14 February 2000 |
| Docket Number | No. 99SA306.,99SA306. |
| Parties | In the Matter of the ESTATE OF Mary Beverly ELLIOTT; a/k/a Beverly Elliott, a/k/a Mary Elliott, Deceased. |
| Court | Colorado Supreme Court |
Renee V. Cooper, Denver, Colorado Attorney, for Petitioner, Darlene Lee Robinson.
Hanna M. Warren, Englewood, Colorado, Attorney for successor, Personal Representative, Phillip Gene Elliott.
We issued a rule to show cause pursuant to C.A.R. 21 in this case to determine whether the probate court abused its discretion when it held Petitioner Darlene Lee Robinson in contempt and ordered her incarcerated indefinitely. We now hold that the probate court abused its discretion when it ordered Petitioner to be incarcerated indefinitely in a remedial contempt proceeding without complying with Colorado Rule of Civil Procedure 107. We direct the probate court judge to disqualify herself to allow for the substitution of another judge to adjudicate contempt proceedings in accordance with this opinion.
On August 23, 1997, Mary Beverly Elliott (decedent) died leaving two surviving adult children, Phillip Gene Elliott (Elliott) and Darlene Lee Robinson (Robinson). On February 9, 1998, the Denver Probate Court issued an Order of Intestacy, Determination of Heirs, and Formal Appointment of Personal Representative. The probate court found that the decedent died intestate and left two heirs, Elliott and Robinson, who each would receive fifty percent of the decedent's estate. The court appointed Robinson as Personal Representative. The estate consisted of personal property, including some furniture, two automobiles, dishes, and jewelry; a bank account containing several thousand dollars; and the decedent's house, located in Denver, Colorado.
According to Elliott, he and Robinson disagreed about the action to be taken regarding the decedent's home, where Elliott had resided prior to the death of the decedent. On July 31, 1998, Robinson sold the house for $134,900. After paying closing costs, attorney fees, a real estate fee, and a debt owed to Sears, Robinson received a check at the closing for $102,409.62. Robinson deposited the check in her personal bank account.
On August 14, 1998, Elliott filed a Petition for Supervised Administration. On December 15, 1998, Elliott filed a Motion for Removal of Personal Representative.
The probate court scheduled a hearing for February 8, 1999, but Robinson did not appear. At the hearing, the court appointed Elliott as successor personal representative. In addition, the probate court issued orders for Robinson to turn over to Elliott all property and assets belonging to the estate of the decedent and to file an accounting of all of the estate assets.
On February 23, 1999, Elliott filed a verified motion for citation of contempt of court, pursuant to C.R.C.P. 107, requesting that the court issue an order to show cause why remedial and punitive sanctions for contempt should not be imposed against Robinson for failure to comply with the court's February 8 order.
On February 26, 1999, the court issued a citation for contempt of court pursuant to C.R.C.P. 107, directing Robinson to appear on April 14, 1999, and show cause why she should not be punished for failing to comply with the court's February 8 order. The citation was personally served upon Robinson.
On April 14, 1999, Robinson again failed to appear for a hearing before the court. On May 14, 1999, the probate court ordered that a bench warrant be issued for the arrest of Robinson due to her failure to appear. On May 17, 1999, Robinson was arrested and placed in Denver county jail. On May 25, 1999, Robinson, still in custody, was brought before the probate court for a hearing on the contempt citation. Robinson was not represented by counsel nor was counsel appointed for her. Elliott was present with an attorney, Hanna Warren. The court began the hearing by stating:
Mrs. Robinson, you are here today because the estate of [the decedent] has not been administered properly. And it's my belief that you may have stolen property from that estate, and we are going to recover the property.... Ms. Warren is going to take some testimony from you to see if we can locate the estate of [the decedent]."
Warren attempted to begin questioning Robinson by handing her some documents relating to the estate. Robinson stated that she did not understand what Warren was handing her, and that her brother, Elliott, had "taken things." The court responded, Robinson indicated that she would cooperate.
Warren proceeded to ask Robinson a number of questions regarding the location of the money from the sale of the decedent's house. Robinson answered the questions asked of her, but frequently she responded that she did not know the answer or could not remember. When the court asked Robinson about a check for $72,000 made out to herself and her daughter, she replied, The court replied, "That's what you want to do with the rest of your life is spend it in jail?" Robinson responded, referring to the $72,000, The court responded, "Mrs. Robinson, it isn't my desire to see you spend the rest of your life in jail." When asked about the remainder of the assets, Robinson stated,
The court ascertained from Robinson's testimony that she spent $25,000 on a condominium and gave most of the remaining money to her two adult children and other people. Robinson stated that she had no bank accounts, certificates of deposit, savings accounts, stocks or bonds, cash, annuities, or other income. The court then stated to Robinson, "You understand that $102,000 belongs to the estate and needs to be restored to the estate," to which she replied, "Well, how—I don't know how to get it."
The judge informed Robinson that she was going to remand her to the custody of the Sheriff until she delivered the $102,000.00. The following dialogue took place:
Robinson: That will be never. So you might as well say forever because you can't — you are a judge. You have power. You are not God, and you can't make something appear that I don't have, so.
Robinson: Okay. They had hostages in Kuwait. They might as well have one here. You can't make me have something I don't have. It's gone.
The judge then adjourned court and had Robinson taken into custody by the Sheriff and imprisoned.
Following the contempt hearing, the probate judge prepared a letter to the office of the district attorney, recommending criminal prosecution of Robinson.
On June 4, 1999, Robinson, through recently retained counsel, filed a request for her immediate release, asserting that she had complied with the February 8 order which directed her to provide an accounting and turn over the assets of the estate to Elliott.
On June 29, 1999, the court held a hearing to rule on Robinson's request for release. At the hearing, Robinson's counsel stated that she had filed an accounting of personal property and money received from the sale of the house. Counsel argued that Robinson was in compliance or was attempting to comply with the February 8 order, stating that Robinson was not in possession of the $102,000. The probate court queried counsel regarding whether the condominium was being sold, and counsel responded that the condominium was not on the market at that time because title had been transferred to Robinson's daughter subsequent to Robinson's arrest and incarceration on May 17, and that Robinson could not have visitors in order to arrange the sale of the condominium. In response to the court's question about what had been done to "generate the $102,000" owed to the estate, counsel stated that Counsel continued, When the court stated in response that "it was presented here in the Court that at the time of the closing on the house, a hundred and two thousand dollars was delivered to the estate," counsel responde...
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People v. Aleem
...(1977). There are limits, however, to the court's contempt power. It may not be used to protect the judge's dignity. In re Estate of Elliott, 993 P.2d 474, 478 (Colo.2000). It must be used with caution and self-restraint to vindicate the rights of litigants and promote the administration of......
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People v. DeBella, No. 06CA2630.
...those where the judge has an apparent bias. See Wilkerson v. Dist. Court, 925 P.2d 1373, 1376 (Colo. 1996); see also In re Estate of Elliott, 993 P.2d 474, 481 (Colo.2000) ("If an appearance of partiality exists, it is incumbent upon a judge to disqualify herself from the Neither bias, nor ......
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People v. Hagos, 05CA2296.
...assertions, nothing in the affidavit demonstrates a manifestation of bias or scorn. Defendant's reliance upon In re Estate of Elliott, 993 P.2d 474, 481–82 (Colo.2000), for a different result is misplaced. Here, in contrast to the facts in that case, the trial judge did not prejudge defenda......
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People v. McGlotten, No. 04CA2636.
...is discretionary, and sanctions will not be reversed unless the contemnor shows that the court abused its discretion. In re Estate of Elliott, 993 P.2d 474, 478 (Colo.2000); In re Marriage of Roberts, 757 P.2d 1108, 1110 (Colo.App.1988). A court must, however, exercise its contempt powers w......