Kuchan v. Nixon (In re Kuchan)

• Docket Number: A-1-CA-40119
• Decision Date: 23 January 2024
• Parties: IN THE MATTER OF THE ESTATE OF GEORGE D. KUCHAN, Deceased v. CHARLES NIXON, Personal Representative of the ESTATE OF MURLENE KUCHAN, Respondent-Appellee/Cross-Appellant. JOHN KUCHAN, Personal Representative of the ESTATE OF GEORGE D. KUCHAN, Petitioner-Appellant/Cross-Appellee,
• Court: Court of Appeals of New Mexico

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IN THE MATTER OF THE ESTATE OF GEORGE D. KUCHAN, Deceased

JOHN KUCHAN, Personal Representative of the ESTATE OF GEORGE D. KUCHAN, Petitioner-Appellant/Cross-Appellee, v. CHARLES NIXON, Personal Representative of the ESTATE OF MURLENE KUCHAN, Respondent-Appellee/Cross-Appellant.

No. A-1-CA-40119

Court of Appeals of New Mexico

January 23, 2024

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY Melissa A. Kennelly District Court Judge.

Atler Law Firm, P.C. Timothy J. Atler Jazmine J. Johnston Albuquerque, NM, Pottow Law, LLC Michael T. Pottow Santa Fe NM for Appellant.

Alsup Law Office Gary D. Alsup Clayton, NM for Appellee

OPINION

JACQUELINE R. MEDINA, Judge.

{¶1} Petitioner John Kuchan-as the personal representative of the Estate of George D. Kuchan (the Estate)-appeals and Respondent Charles Nixon-as the personal representative of the Estate of Murlene Kuchan-cross-appeals from a district court order granting in part and denying in part Respondent's motion for partial summary judgment concerning the distribution of the Estate after trial and entry of the final judgment. Petitioner argues on appeal that the district court erred by failing to apply the doctrine of judicial estoppel to Respondent's claim that a portion of the property in the Estate-the West Tract-was community property. Respondent argues on cross-appeal that the district court erred by denying Respondent's claims of family allowance under NMSA 1978, Section 45-2-402 (1995); and personal property allowance under NMSA 1978, Section 45-2-403 (2011) against the Estate.

{¶2} We hold that the district court did not abuse its discretion when it rejected Petitioner's claim of judicial estoppel because Respondent did not successfully assume the West Tract was community property. We additionally hold that the Estate of Murlene Kuchan was entitled to family and personal allowances because Murlene made the claim while she was the surviving spouse of George. We therefore affirm in part and reverse in part

BACKGROUND

{¶3} George Kuchan died intestate on July 30, 2019. At the time of his death, George was married to Murlene Kuchan. George was survived by Murlene and three children from a previous marriage. Two children disclaimed their interest in the Estate in favor of Petitioner.

{¶4} On September 19, 2020, Murlene petitioned the district court to appoint her as the sole personal representative of the Estate. The district court appointed Murlene as personal representative, and ordered unsupervised administration without bond for formal probate proceedings. Murlene filed the first inventory and appraisal of the Estate on January 13, 2020. Relevant to Petitioner's appeal, the inventory and appraisal listed a "[c]ommunity lien against lands in Sections 8, 9 and 17, Township 27 North, Range 23 East [(the West Tract)]" for $75,000. In explanation, Murlene stated that she "acknowledges the separate character of inventoried lands in [the West Tract]," but was entitled to a community lien due to improvements made to the property while Murlene was married to George. Relevant to Respondent's cross appeal, Murlene also stated that she "elects to exercise her claim for a Spousal Allowance and Personal Property Allowance against [the West Tract] for a total additional claim of $45,000." Murlene also filed a notice of intended distribution on January 13, 2020 stating, "An undivided 1/4 interest in [the West Tract] will be conveyed to Murlene Kuchan as the surviving spouse," and the "remaining undivided 3/4 interest in [the West Tract will] be conveyed to Murlene Kuchan in satisfaction of the Personal Property Allowance and Family Allowance and in satisfaction of the community lien."

{¶5} Petitioner-before becoming personal representative of the Estate-filed a response to the intended distribution, requesting that all separate property, including the West Tract, remain a part of the residue of the Estate and objecting to the family and personal property allowances "insofar as they include any property identified as separate property" of the Estate. Petitioner also served discovery on Murlene about the community lien. In her responses to Petitioner's discovery requests, Murlene stated, "George had acquired a portion of the West [Tract] and exchanged other separate property . . . to consolidate the West [Tract] early in our marriage. That property is what I am referring to as the separate property in the [i]nventory." Murlene also produced tax documents showing that George was billed separately for the West Tract. Murlene filed an amended inventory and appraisal on April 1, 2020, in which she made the same statement acknowledging the separate character of the West Tract and asserted the same claims for family and personal property allowances. The district court entered a scheduling order setting the matter for a two-day bench trial beginning February 4, 2021.

{¶6} Murlene Kuchan passed away on August 27, 2020. Petitioner filed a request with the district court to succeed Murlene as the sole personal representative of the Estate, which the district court granted. Respondent was appointed the personal representative of the Estate of Murlene Kuchan. Respondent filed a notice of intent to continue pursuing Murlene's claims of family and personal property allowances and the community lien against the West Tract.

{¶7} Respondent then filed for partial summary judgment pursuant to Rule 1-056 NMRA, in relevant part, for (1) establishment that the West Tract was held by George and Murlene as community property based on deed records of the property, not separate property as Murlene had previously stated; and (2) satisfaction of the family and personal property allowances Murlene was entitled to as the surviving spouse of George under Sections 45-2-402 and -403. In response, Petitioner argued (1) the district court should judicially estop Respondent from claiming the West Tract as community property because Murlene took the position that the West Tract was separate property earlier in the probate proceedings; and (2) the family and personal property allowances could not be transferred to the Estate of Murlene Kuchan because they are only for the personal benefit of the surviving spouse, citing to In re Estate of Vigil, 2012-NMCA-121, 296 P.3d 1209, for support. Respondent replied that Petitioner had not raised a factual issue with respect to any of Respondents uncontested material facts and had not demonstrated the elements supporting application of the doctrine of judicial estoppel: (1) Murlene did not successfully assume the position that the West Tract was separate property in the context of a judicial proceeding; (2) Petitioner failed to establish prejudice by the change in position regarding the identification of the West Tract as community property; and (3) it would be unjust to apply judicial estoppel on the basis of Murlene's mistake of fact or mistake of law with regard to the West Tract. Respondent also replied that Murlene's estate was entitled to Murlene's family and personal property allowance claims because she survived the decedent by more than 120 hours.

{¶8} The district court orally granted Respondent's motion for summary judgment to establish the West Tract was community property, but denied Respondent's motion on satisfaction of the family and personal property allowances at the motion hearing. However, in its written order the district court denied the motion for partial summary judgment relevant to the issues on appeal. The district court first concluded that the "doctrine of judicial estoppel does not apply for two reasons. First, because Murlene Kuchan did not 'successfully' assume the position that the [West Tract was] separate property" because "no adjudication was made on the merits involving that position." "[S]econd, the change of position by [Respondent] after [Murlene's] death has not prejudiced [Petitioner] because he acquiesced to nothing and gave nothing up by relying on that position." But Murlene's previous statements in the inventory and appraisals did "operate to alert the [district c]ourt to a specific fact showing that there is a genuine issue for trial with regard to whether [the West Tract is] community or separate property." The district court further denied Respondent's request for the allowances and found that it was "bound by the holding in In re Estate of Vigil, 2012-NMCA-121, ¶ 13" that "our Legislature did not intend these allowances to be transferred from the decedent's [E]state to the [E]state and heirs of the surviving spouse."

{¶9} Following a bench trial in May 2021 the district court allowed both parties to submit requested findings of fact and conclusions of law. Petitioner requested the district court conclude in part that he "was prejudiced by the change in position regarding [the West Tract] because the change did not occur until after Murlene Kuchan's death, thereby preventing him from taking her testimony concerning the character of the property." The district court concluded in its final order that the West Tract "was the community property of George Kuchan and Murlene Kuchan at the time of George Kuchan's death." The district court also reiterated "the doctrine of judicial estoppel does not apply to statements made by Murlene Kuchan in previous inventories filed in this case," and "the Estate of Murlene Kuchan is not entitled to family and personal property allowances, even though Murlene Kuchan would have been entitled to these allowances during...