Reynolds v. Guardianship of Sears, 96-1111

• Decision Date: 24 March 1997
• Docket Number: No. 96-1111,96-1111
• Citation: 940 S.W.2d 483,327 Ark. 770
• Parties: Bill D. REYNOLDS, Appellant, v. GUARDIANSHIP OF Grace L. SEARS, Appellee.
• Court: Arkansas Supreme Court

Page 483

940 S.W.2d 483

327 Ark. 770

Bill D. REYNOLDS, Appellant, v. GUARDIANSHIP OF Grace L. SEARS, Appellee.

No. 96-1111.

Supreme Court of Arkansas.

March 24, 1997.

Bruce H. Bethell, Fort Smith, for Appellant.

Michael E. Stubblefield, Fort Smith, for Appellee.

THORNTON, Justice.

This case involves the appointment of a guardian of the person and estate of Grace L. Sears, age seventy, a resident of Fayetteville, Arkansas, who was found to be incapacitated and unable to manage her own affairs. In early February 1996, family members became convinced that Mrs. Sears was in need of a guardianship. With the consent of three of her four children, Clifford, Fran, and William Sears, she was placed in the Washington Regional Medical Center on February 12, 1996, for a four-week evaluation. Two days later without notice to Clifford or Fran, Mr. Bill Reynolds, an attorney who is not related to Mrs. Sears, but who had been named a potential cotrustee of Mrs. Sears's revocable trust, together with Mr. and Mrs. William Sears, caused her to be checked out of the Washington County medical facility and transported to Brownwood Manor Nursing Facility in Crawford County.

Upon discovering this move, Clifford and Fran filed a petition in Washington County Probate Court for temporary guardianship on February 16. On February 27, the petition was amended to seek full guardianship. The probate court scheduled a hearing for March 27, and notice was served. While William Sears neither joined in their guardianship petition nor responded to the petition, he was present at the hearing; furthermore, he did not seek to be named as a guardian or take timely action to contest or protest the guardianship. The whereabouts of the other sibling, Donna Sue Haas, is unknown.

Representing himself to be the guardian of Mrs. Sears, Mr. Reynolds challenged venue in Washington County. When the matter was heard, the probate court determined that venue was properly in Washington County, that Mr. Reynolds was not a party to the proceeding, and that no person having standing to object or otherwise respond to the petition had done so. All persons related to Mrs. Sears agreed that she was incapacitated and that guardians should be appointed. The probate court then named the two children of Mrs. Sears who had filed the petition as guardians.

Mr. Reynolds appeals from this decision, asserting that he should have been permitted to file a responsive pleading following the denial of his venue-based motion to dismiss. Because we agree with the probate court that Mr. Reynolds was not a party to the proceeding and had no standing to contest the appointment of guardians, we affirm.

We review probate matters de novo on appeal, and will not disturb the probate judge's decision absent an abuse of discretion or upon findings that the judge's decision was clearly erroneous. Mangum v. Estate of Fuller, 303 Ark. 411, 797 S.W.2d 452 (1990); see also White v. Welsh, 323 Ark. 479, 915 S.W.2d 274 (1996).

It is undisputed that Mrs. Sears was incapacitated and in need of a guardian. Before reaching the guardianship issue, the first matters considered by the probate court were the issues of standing and venue. Mr. Reynolds contended that his position as attorney-in-fact gave him standing in the guardianship proceeding. With reference to these issues, the following colloquy ensued, which is abstracted as follows:

MR. SELF [counsel for appellant]: Your Honor, Mr. Caddell is co-trustee of the estate, along with Mr. Reynolds who is also a party.

THE COURT: Well, I'm not sure they are parties in this proceeding. I don't think their status as co-trustees or attorney--with Power of Attorney--I don't think that makes them parties.

MR. STUBBLEFIELD [counsel for appellee]: That would be our argument, Your Honor. And in the Probate Court, I believe the statutes of Arkansas make it fairly clear that the Probate Court has no jurisdiction over a trust. So we're not here arguing the trust today.

THE COURT: I think they are not entitled to remain, Mr. Self.

MR. SELF: On the question of venue, the motion filed by Mr. Reynolds, he is a party to that motion, is that correct?

THE COURT: Well, he's a party to the motion, but I don't know whether he's a party to this case.

. . . . .

THE COURT: Well, I don't think the question of standing to file a motion has been raised. But the motion describes himself as guardian. There is nothing in this file to show that he is the guardian. I think it is alleged somewhere in the original petition or the amended petition that the gentleman holds a Power of Attorney for Mrs. Sears. But I don't think that constitutes him as a party to this proceeding to inquire into the providence of the suggested guardianship.

MR. SELF: Then I will call Mr. Bill Reynolds as my first witness.

THE COURT: Do you wish to raise the question of the standing of Mr. Reynolds to take part in this proceeding?

MS. DILLON [co-counsel for appellee]: Yes, we do, Your Honor.

THE COURT: I think that's a very significant request, Mr. Self, whether your client has standing to appear in this matter and to challenge the venue.

Mr. Stubblefield withdrew his objection to allowing Mr. Reynolds to testify on venue, but maintained his objection that Mr. Reynolds was not a party to the guardianship proceeding. With regard to venue, it was undisputed that Mrs. Sears had established domicile in Washington County that continued until February 16, the date that she was transferred to Crawford County. We agree with the probate court's determination that venue was proper in Washington County.

We next consider the issue whether Mr. Reynolds is a party to the guardianship petition. On November 28, 1995, Mrs. Sears was the grantor of a revocable trust into which she transferred substantial assets for her own benefit as primary beneficiary of the trust. She designated herself as the original trustee, to serve during her life or until she became unable or unwilling to serve as trustee. She nominated Fred L. Caddell or Bill D. Reynolds to serve as successor trustee in the event of her removal as trustee. At the time of the hearing, she had not been removed as trustee, and Mr. Reynolds was only a potential successor cotrustee with dormant powers. On November 28, Mrs. Sears also published her last will and testament naming Mr. Caddell and Mr. Reynolds as her executors, and providing that all of her estate would be added to the trust that was contemporaneously established....