Rowe v. Walker (In re Rowe)

• Decision Date: 02 August 2021
• Docket Number: S-20-0269
• Citation: 492 P.3d 888
• Court: Wyoming Supreme Court
• Parties: In the MATTER OF the ESTATE OF Deidra Michayle Walker ROWE, deceased: Tony Rowe, Personal Representative of the Estate of Darren Todd Rowe, Appellant (Respondent), v. Melvin Lee Walker, Administrator of the Estate of Deidra Michayle Walker Rowe, Appellee (Petitioner).

492 P.3d 888

In the MATTER OF the ESTATE OF Deidra Michayle Walker ROWE, deceased:

Tony Rowe, Personal Representative of the Estate of Darren Todd Rowe, Appellant (Respondent),

v.Melvin Lee Walker, Administrator of the Estate of Deidra Michayle Walker Rowe, Appellee (Petitioner).

S-20-0269

Supreme Court of Wyoming.

August 2, 2021

Representing Appellant: Stuart R. Day and Alia T. Scott, Williams, Porter, Day & Neville, P.C., Casper, Wyoming; Douglas R. McLaughlin, Law Office of Douglas R. McLaughlin, Casper, Wyoming. Argument by Ms. Scott.

Representing Appellee: Robert Hand, Jr., Hand & Hand, Casper, Wyoming. Argument by Mr. Hand.

Before FOX, C.J., and DAVIS^* , KAUTZ, BOOMGAARDEN, and GRAY, JJ.

FOX, Chief Justice.

[¶1] Darren Todd Rowe shot his wife, Deidra Michayle Walker Rowe. Then he shot himself. They owned two vehicles as joint tenants with right of survivorship, which, absent exceptional circumstances, would have gone to Darren upon the death of Deidra. Believing that exceptional circumstances existed, Deidra's administrator petitioned the probate court for authority to sell the two vehicles. Darren's estate intervened and objected. The probate court determined Deidra and Darren became tenants in common under the circumstances of her death and authorized the sale. Darren's estate appeals, and we dismiss the appeal because there is no appealable order.

ISSUE

[¶2] Both parties raise jurisdictional challenges to this appeal. We find one issue dispositive:

Is the probate court's ruling on a petition to sell property an appealable order?

FACTS

[¶3] Darren Todd Rowe killed his wife, Deidra Michayle Walker Rowe, and then killed himself. The probate court appointed Melvin Lee Walker, Deidra's father, administrator of her estate, and appointed Tony Lyn Rowe (Mr. Rowe),¹ Darren's father, administrator of his estate. Mr. Walker also filed a wrongful death action in the district court against Darren's estate. The couple owned several vehicles and Deidra's estate obtained possession of two of them, a 2014 Subaru Forester, and a 2010 Polaris MVP Ranger, both held as joint tenants with right of survivorship. Deidra's estate petitioned the probate court pursuant to Wyo. Stat. Ann. § 2-7-614 for permission to sell them.

[¶4] Mr. Walker served Darren's estate with notice of his petition to sell the vehicles. Mr. Rowe, as administrator of Darren's estate, objected to the sales and moved to intervene. The district court held a hearing in which it granted Mr. Rowe's motion to intervene and then heard the parties’ arguments. Mr. Walker stated his concern the vehicles were depreciating in value and explained that he planned to deposit the proceeds into an estate account pending distribution. He argued that equitable principles, Wyoming's felonious death statute,² and public policy precluded Darren's estate from receiving the proceeds. Mr. Rowe countered that the property became Darren's by operation of law because property held in joint tenancy with right of survivorship automatically passes to the surviving spouse. He did not dispute the circumstances of Deidra's death, but argued the consequences of Darren's actions would be best addressed in the wrongful death case. Mr. Rowe also argued that the probate court lacked jurisdiction to decide title disputes between an estate and a third party.

[¶5] The probate court determined that "based on the principles of equity and the intent of the ‘slayer statute,’ " Darren's intentional, felonious killing of Deidra "severed the joint tenancy by right of survivorship ... thereby creating a tenancy in common which is subject to the jurisdiction of the probate court." The court authorized the sales, but required Deidra's estate to hold one-half of the proceeds for the benefit of Darren's estate, to be distributed at a later date. Mr. Rowe appealed. The vehicles were sold.

DISCUSSION

[¶6] Deidra's estate argues this Court lacks jurisdiction over the appeal because the Order Granting Authorization to Sell Specific Personal Property is not a final appealable order. Darren's estate contends the probate court lacked jurisdiction "to determine issues of title disputes between an estate and a third party." We agree the order appealed from is not final or appealable, and we address additional issues to provide guidance to the parties and the court. Inman v. Williams , 2009 WY 51, ¶ 6, 205 P.3d 185, 189 (Wyo. 2009).

I. The Probate Court's Order Granting Permission to Sell the Property Is Not Appealable

[¶7] The Supreme Court's jurisdiction is generally limited to appeals from final orders. Matter of Est. of Inman , 2016 WY 101, ¶ 9, 382 P.3d 67, 69 (Wyo. 2016). W.R.A.P. 1.05(a) provides that an appealable order is "An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment." An appealable order must not only affect a substantial right, it must "determine the merits of the controversy, and resolve all outstanding issues." Inman , 2016 WY 101, ¶ 10, 382 P.3d at 69 (quoting Waldron v. Waldron , 2015 WY 64, ¶ 14, 349 P.3d 974, 977 (Wyo. 2015), overruled on other grounds by Essex Holding, LLC v. Basic Properties, Inc. , 2018 WY 111, 427 P.3d 708 (Wyo. 2018) ). "In a probate matter ‘there can be two final appealable orders, one which determines the parties to whom the estate is to be distributed and how much they will receive, and another which determines that the personal representative has properly completed the decreed distribution and administration of the estate.’ " Inman , 2016 WY 101, ¶ 11, 382 P.3d at 69 (quoting Est. of Dahlke ex rel. Jubie v. Dahlke , 2014 WY 29, ¶ 41, 319 P.3d 116, 126 (Wyo. 2014) ). The order granting Mr. Walker's petition to sell the vehicles is neither of these and is not appealable. The record indicates there are, or will be, other property disputes between the two estates. At oral argument, Mr. Rowe's counsel informed the Court that there remains other property in the estate to be disposed of, some of which was also held as joint tenants with right of survivorship, and therefore a ruling from this Court would be helpful to the parties going forward. "[W]e do not furnish advisory opinions." Spear v. Nicholson , 882 P.2d 1237, 1242 (Wyo. 1994) (citations omitted).

[¶8] W.R.A.P. 1.05 also allows appeals of non-final orders in certain circumstances. "[W]hat was intended by the [1992] amendment of that rule was that we would no longer look at just whether an order was ‘final.’ Rather the limitation on our review would be directed to whether an order was ‘appealable’ as defined by Rule 1.05." FML v. TW , 2007 WY 73, ¶ 5, 157 P.3d 455, 458 (Wyo. 2007). Mr. Rowe contends this Court has jurisdiction under W.R.A.P. 1.05(b), which provides that "[a]n order affecting a substantial right made in a special proceeding" is appealable. " ‘Special proceedings’ is a term used to distinguish litigation that is not governed by the general regime of pleadings." It is "distinguished from other civil actions by the manner of pleading, practice and procedure prescribed by law." In re Est. of Hibsman , 2012 WY 139, ¶ 16, 287 P.3d 757, 761 (Wyo. 2012) (citations omitted). As we discuss below, this proceeding was certainly outside the general regime of pleadings and qualifies as a special proceeding. Darren's estate contends the probate order affects substantial rights because it determined the estate "did not have title to property that was held in joint tenancy with the rights of survivorship." We have found a "substantial right" existed in cases affecting the fundamental right "to associate with one's immediate family," FML , 2007 WY 73, ¶ 6, 157 P.3d at 459 ; proceedings in juvenile court that had the effect of halting family reunification efforts, Matter of AM-LR , 2018 WY 76, ¶ 9, 421 P.3d 551, 554 (Wyo. 2018) ; decisions on whether the Indian Child Welfare Act applies in child welfare cases, In re SNK , 2003 WY 141, ¶ 11, 78 P.3d 1032, 1036 (Wyo. 2003) ("Congress, when enacting ICWA, expressly found that there is no resource that is more vital to the existence and integrity of Indian tribes than their children."); and the Attorney General's authority to issue an investigative subpoena in a consumer protection investigation, WyoLaw, LLC v. Off. of Att'y Gen., Consumer Prot. Unit , 2021 WY 61, ¶ 1, 486 P.3d 964, 967 (Wyo. 2021).

[¶9] In contrast, in Hibsman , we held a court order finding a former personal representative had "concealed, embezzled, conveyed away and/or disposed of monies and other property of the estate and entered an order finding prima facie evidence of the right of the estate's Personal Representative to recover an amount ‘not less than $137,566.46’ " did not affect a substantial right. 2012 WY 139, ¶¶ 11, 17, 287 P.3d 757, 760, 761 (Wyo. 2012). The rights affected by the probate court's order in this case are more like the rights at issue in Hibsman than the rights we considered "substantial" in the cases above, particularly in light of the fact the used vehicles have been sold and the proceeds remain in Deidra's estate for final disposition.

II. The Probate Court Has Coextensive Jurisdiction with the District Court

[¶10] Mr. Rowe argues the probate court lacked jurisdiction to issue the order on Mr. Walker's petition to sell, relying primarily on pre-1985 decisions of this Court. See Matter of Kokesh's Est. , 664 P.2d 127, 129 (Wyo. 1983) (it is unquestioned that in Wyoming a probate court is without jurisdiction to adjudicate title to property); Matter of Harrington's Est. , 648 P.2d 556, 559 (Wyo. 1982) (same); Wayman v. Alanko , 351 P.2d 100, 104 (Wyo. 1960) ("It is the general rule that the superior court while sitting in probate is without power to decide a disputed claim between an estate and a stranger thereto."). But those cases pre-date the 1985 statutory amendment that "provide[s] ancillary jurisdiction in the probate court ‘co-extensive with the jurisdiction over subject matter of the district court in any...