In re the Estate of: Pitman

• Decision Date: 22 February 2000
• Parties: (Mo.App. W.D. 2000) . In re the Estate of: Edra Pittman. WD56987 Missouri Court of Appeals Western District Handdown Date: 0
• Court: Missouri Court of Appeals

16 S.W.3d 639 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

In re the Estate of: Edra Pittman.

WD56987

Missouri Court of Appeals Western District

Handdown Date: 02/22/2000

Appeal From: Circuit Court of Bates County, Hon. John Mackey O'Bannon

Counsel for Appellant: Gardiner Blaine Davis

Counsel for Respondent: Stephen Nordyke

Opinion Summary:

On Gerald Pittman's motion for rehearing, the previous opinion in this case is withdrawn and replaced. He appeals the circuit court's judgment removing him as guardian and conservator for his mother, Edra Pittman. He argues that the circuit court erred in removing him because Edra Pittman's petition did not state any statutory grounds for relief. He also alleges that the circuit court based its judgment on issues not stated in the petition and that this amounted to trial of the issues without proper notice.

AFFIRMED.

Division holds: The historically lenient requirements for pleadings in probate cases, along with Gerald Pittman's failure to object or show any prejudice, indicate that he received adequate notice of the nature of Edra Pittman's claim. The evidence that Gerald Pittman's continued guardianship was not in Edra Pittman's best interests was sufficient to support the circuit court's judgment.

Opinion Author: Paul M. Spinden, Presiding Judge

Opinion Vote: AFFIRMED. Lowenstein and Ulrich, JJ., concur.

Opinion:

Gerald Pittman appeals the circuit court's judgment removing him as guardian of his mother, Edra Pittman, and conservator of her estate. The circuit court acted on a petition filed by Edra Pittman, and Gerald Pittman argues that the circuit court erred because Edra Pittman's petition did not state any statutory grounds for relief. He also alleges that the circuit court based its judgment on issues not stated in the petition and that this amounted to trial of the issues without proper notice. We affirm the circuit court's judgment.

The circuit court appointed Gerald Pittman as his mother's guardian and conservator of her estate in 1984. Edra Pittman asked the circuit court to remove her son and to appoint in his stead Susan Pittman, her son's former wife. The circuit court granted her request to remove Gerald Pittman from the positions. It appointed Susan Pittman as conservator of Edra Pittman's estate and June Cumpton, Bates County public administrator, as Edra Pittman's guardian.¹ Gerald Pittman's appeal asserts that the circuit court erred because Edra Pittman's motion did not allege, and the evidence did not support, any statutory ground for removal.

Although Gerald Pittman did not raise the issue of the sufficiency of the pleadings at trial, we consider his argument because a pleading that does not state a cause of action deprives the circuit court of subject matter jurisdiction. Landvatter Ready Mix, Inc. v. Buckey, 963 S.W.2d 298, 303 (Mo. App. 1997). Gerald Pittman mistakenly argues that the only statutory ground for allowing a ward to request removal of a court-appointed guardian is section 475.110.² Section 475.110 also incorporates the grounds for removal of a personal representative listed in section 473.140 and applies them to removal of a guardian or conservator.

Section 473.140 says:

If any personal representative . . . fails to discharge his official duties, or wastes or mismanages the estate, . . . the court, upon its own motion, or upon complaint in writing made by any person interested supported by affidavit, after notice to the personal representative, . . . shall hear the matter and may revoke the letters granted.³

Section 472.010 defines "interested person" in probate cases as including "others having a property right or claim against the estate." It also says, "This meaning may vary at different stages and different parts of a proceeding and must be determined according to the particular purpose and matter involved."

Edra Pittman certainly was an "interested person" in the management of her estate. She, therefore, had authority pursuant to section 475.110 to petition the circuit court for her son's removal as her guardian and conservator of her estate.

Moreover, section 475.082.5 specifically authorizes the circuit court to act on Edra Pittman's petition. It says:

If it appears to the court as part of its review or at any time upon motion of any interested person, including the ward or protectee or some person on his behalf, that the guardian or conservator is not discharging his responsibilities and duties as required by this chapter or has not acted in the best interests of his ward or protectee, the court may order that a hearing be held and direct that the guardian or conservator appear before the court.

Although Edra Pittman's motion did not aver the statutory basis for her seeking to remove her son as her guardian and conservator of her estate, the circuit court did not err in removing Gerald Pittman. "Probate pleadings are not to be judged by the strict rules of pleadings applied to a petition in the circuit court. If the pleadings give reasonable notice of the nature and extent of the claim[,] strict rules of pleadings . . . are not required." Estate of McCormack v. McCormack, 676 S.W.2d 928, 930 (Mo. App. 1984).

Edra Pittman stated twice in her motion that she wanted to remove Gerald Pittman as her guardian and conservator of her estate. Other contentions referred to her improved "capacity to care for her person and her ability to manage her financial resources." These statements taken with the request to replace Gerald Pittman with Susan Pittman as guardian and conservator reasonably gave Gerald Pittman notice of the nature and extent of the claim.

The summary nature of probate pleadings "is purposely so framed that parties can attend to their own business in ordinary matters, and the decisions should be so rendered as to subserve the ends of justice according to the evidence." Guthrie v. Fields, 299 S.W. 141, 143 (Mo. App. 1927). Lenience in probate pleadings also results from the early practice of appointing probate judges who were not lawyers. Murphy v. Pfeifer, 105 S.W.2d 39, 41 (Mo. App. 1937). After the Court Reform and Revision Act of 1979, probate courts became a division of circuit court. Because it was then vested with general equity jurisdiction, the probate division could remove a guardian on non-statutory grounds. 5B John A. Borron, Jr., Missouri Practice: Probate Law and Practice section 1982 (2d ed. 1992).

This court's recent decision In re Estate of Vester, 4 S.W.3d 575 (Mo. App. 1999), is distinguishable. The petition in that case advised the conservator and personal representative that a creditor requested her removal as personal representative, but the circuit court, on its own motion, proceeded to remove her as conservator. In re Boeving's Estate, 388 S.W.2d 40 (Mo. App. 1965), which holds that pleadings must allege specific statutory grounds, was another instance when the circuit court, ex mero motu, initiated the removal of a guardian or conservator.

Gerald Pittman had notice from Edra Pittman's petition titled "Motion for Order Changing the Person Designate as Guardian and Conservator" and from the circuit court's notice of hearing issued on October 29, 1998 that she wanted him removed as her guardian and conservator of her estate. Gerald Pittman does not dispute that Edra Pittman sought to remove him as both guardian and conservator of her estate; he argues that the notice he received was not detailed enough.

The notice required when a ward or protectee brings a motion to terminate or to remove a guardian is a copy of the petition and notice of hearing. Section 475.083.6; Borron, supra. Gerald Pittman received such notice. He appeared at the appointed time, presented three witnesses, and never objected to the scope of the proceedings or requested clarification of the grounds for Edra Pittman's motion. "However defective the [petition], the court has jurisdiction to judge and determine. If the one cited and served appears, he submits himself to ...