Stautzenberger v. Stautzenberger

Paul E. Danielson, Justice,

concurring in part, dissenting in part.

While I too would affirm on the Rule 60 issue, I would reverse and remand for entirely different reasons with respect to the disallowance of expenditures. I therefore respectfully concur in part and dissent in part.

First, I agree that the circuit court was within its discretion in modifying its previous order. Under Ark. R. Civ. P. 60(a) (2012), a circuit court may, within ninety days, modify or vacate a judgment, order, or decree, on its own motion or that of any party, with prior notice to all parties, “[t]o correct errors or mistakes or to prevent the miscarriage of justice.” The only limitation on the exercise of the power to set aside the judgment pursuant to Rule 60 is addressed to the sound discretion of the circuit court. See RLI Ins. Co. v. Coe, 306 Ark. 337, 813 S.W.2d 783 (1991).

Here, the circuit court specifically found in its modified order that Michael and Duane’s motion to modify was a timely and proper motion under Rule 60 that should be granted. Moreover, at the hearing on the motion to modify, the circuit court observed:

|9Well, that’s the problem with doing Orders not in open court because you will get caught missing something that you should have included. And, truly, I fully intended for Mr. Blair Stautzenber-ger to be ordered to repay the estate for the eighty-five thousand (85,000) and the two hundred and one thousand (201,000), not just the fifteen thousand (15,000) and the attorney fees. The Order should have included an Order that he do that, that he return those funds to the guardian’s estate. So, that was an omission by the Court, that will be corrected.
Now, regarding these Waivers, you know these folks aren’t making a claim, they’ve never made a claim, they’re not in front of the court. So, certainly, the amount to be returned to the Estate so that it can be distributed can be lessened by whatever amount those folks would have received. So that can be accomplished using the percentages ... [rjeduced down by three fifths.
So, those percentages can be dealt with. As far as the attorneys’ fees, I’ve ordered Mr. Blair Stautzenberger to be responsible for his own. And, so, Mr. McClure can simply provide the Court with a letter, at the conclusion stating that Mr. Stautzenberger has paid Mr. McClure’s attorney’s fees himself and whatever amounts had been otherwise paid by the estate have been replenished by Mr. Stautzenberger, Mr. Blair Staut-zenberger. And I don’t think we need to go any further than that.
Then once this order has been corrected, the bonding company can be notified that they have a responsibility.

My review of the circuit court’s ruling makes clear that the modifications made to the original order were in accord with Ark. R. Civ. P. 60(a) that permits the correction of errors or mistakes within ninety days.

Notwithstanding the plain language of Rule 60(a), Blair asserts that the rule is expressly limited to the correction of the record to make it conform to the action actually taken at the time and not to an action that the court should have taken, but did not take.1 hnHe is mistaken. That limitation is inapposite to corrections under the current subsection (a); instead, our jurisprudence makes clear that the limitation exists as to the current subsection (b) of Rule 60, which allows clerical errors to be corrected at any time. See, e.g., Office of Child Support Enforcement v. Pyron, 363 Ark. 521, 215 S.W.3d 637 (2005) (observing that the limitation refers to the correction of clerical errors). However, because the current subsection (b) was formerly subsection (a), some confusion occurs. See, e.g., Watson v. Connors, 372 Ark. 56, 59, 270 S.W.3d 826, 829 (2008) (“In the amendment to Rule 60, the discussion of ‘clerical errors’ was moved from paragraph (a) to paragraph (b), and the discussion of vacation or modification of judgments and orders to prevent the miscarriage of justice was moved from paragraph (b) to paragraph (a).”).

Because the record in this case makes clear that the circuit court’s modified order was an attempt to clarify or correct its prior order and was entered within ninety days, it is my |n opinion that the circuit court’s order was proper and was not outside the confines of Rule 60(a).

With regard to the challenged expenditures,2 this court in its de novo review on appeal will not reverse the findings of the probate court unless they are clearly erroneous, giving due deference to the probate court’s superior position to determine the credibility of witnesses and the weight to be accorded their testimony. See Barrera v. Vanpelt, 332 Ark. 482, 965 S.W.2d 780 (1998). A finding is clearly erroneous when, although there is evidence to support it, this court is left on the entire evidence with the firm conviction that a mistake has been committed. See Seymour v. Biehslich, 371 Ark. 359, 266 S.W.3d 722 (2007).

Arkansas Code Annotated § 28-65-301 (Repl.2004) provides, in pertinent part, that “[i]t shall be the duty of the guardian of the person, consistent with and out of the resources of the ward’s estate, to care for and maintain the ward.” Ark.Code Ann. § 28-65-301(a)(l). “[I]f the guardian of the estate has the care and custody of the ward,” “the guardian of the estate ... may apply to the court for an order ... directing the guardian of the estate to apply a designated amount periodically as the court may direct, to be extended for the care, maintenance, and education of the ward and of his or her dependents.” Ark.Code Ann. |12§ 28-65-309(a) (Repl. 2004). This court has held, however, under a prior statute containing similar language,3 that a probate court does have jurisdiction to allow a guardian credit for amounts expended where the guardian was without an order to do so, but the guardian must realize that should he so expend, he does so at his own risk. See Robinson v. Hammons, 228 Ark. 329, 307 S.W.2d 857 (1957) (comparing Ark. Stat. Ann. § 57-307, which the court held required a previous order and was repealed, with Ark. Stat. Ann. § 57-632). Finally, “[u]pon a showing that the action would be advantageous to the ward and his or her estate, the court may authorize the guardian to make gifts and disclaimers on behalf of the ward.” Ark.Code Ann. § 28-65-308(b) (Repl.2004).

Here, it is undisputed that Blair lacked an order by the circuit court authorizing him to make the expenditures at issue on his mother’s behalf. Nonetheless, this court has previously observed that a “Probate Court could approve the expenditures even after they had been made if the guardian could establish to the satisfaction of the Probate Court that 11ssuch expenditures were reasonable and proper and were actually expended for the ward.” Shinley v. Ricks, 234 Ark. 767, 771, 354 S.W.2d 547, 549 (1962). The question then should have been: Were the expenditures made by Blair reasonable and proper and actually expended for Ms. Osborne? Based on the instant record, however, I am unable to tell whether the circuit court actually made such a determination on each expenditure.

Blair challenges the disallowance of five categories of expenditures: (1) food and other household expenditures from which, Blair claims, Ms. Osborne benefited; (2) financial assistance to Ms. Osborne’s handicapped daughter; (3) financial assistance to her learning-disabled son; (4) financial assistance to aid in the schooling of her handicapped grandson; and (5) donations to Ms. Osborne’s church. A review of the circuit court’s order reveals that the circuit court merely adopted what it deemed findings by Travis Riggs, a certified public accountant ordered by the circuit court to review Ms. Osborne’s estate.

Yet, Riggs testified that he reviewed the expenditures and made a list of those that should be disallowed. Riggs testified regarding his criteria for allowing or disallowing an expenditure:

The law states that we should allow expenditures for the health, maintenance and education of the [ward].... In determining that, we actually had no receipts, no accounting, no documentation supporting these expenditures. What we did have [were] bank statements that indicated entities in which purchases were made; American Express statements which indicated the entities where purchases were made, meaning, Wal-Mart, Dillard’s, you know, retail outlets. So, by going through those, we, to our best attempt, and through inquiry of ... Blair. We had a meeting and gave him an opportunity to explain the expenditures, also, since we did not have any actual documentation. Based on that, we made a determination of what was considered eligible or allowed, and those expenditures that were left over are our disallowed expenses.

114Riggs also said that the key factor he used for analysis in making a determination as to whether an expense was related to the health, education, or maintenance of the ward “would have been Blair’s sharing information with us,” “where I gave him an opportunity to explain those expenditures.” Additionally, he testified to the following, regarding the donations made to Ms. Osborne’s church:

BlaiR’s Counsel: You also disallowed any gifts or tithing that the ward made to her church?
Riggs: I did.
Blair’s Counsel: Would there be any documentation, for example, for a tithe to a church that would have caused you to allow that expense?
Riggs: No.
Blair’s Counsel: Is there any — anything for a ward, with regards to health, education and maintenance, with regard to their spiritual health, education and maintenance that would cause you to allow a tithe to a church?
Riggs: That wasn’t described that way in the rules that I had.... I’m just saying with the rules that I [was] given to go by, that was not a distinction that was made for spiritual health or maintenance.

Accordingly, a question remains in my mind whether the proper inquiry was had for each expenditure, as outlined below.

Food and Other Household Expenditures

Here, Blair testified that he often bought restaurant gift cards for his mother to give to people who took her to church, such that they could take her to lunch afterward. He also testified that when family came to town, they would all get dinner together and that, |1sas was his mother’s custom, she paid for the dinner. In addition, he testified that he brought his mother meals and took her to dinner; he further testified that he would sometimes bring food into the nursing home for parties in his mother’s honor.

Even at first blush, it would appear that at least some of these expenditures might qualify as reasonable expenditures for Ms. Osborne’s care, maintenance, or education. This would be especially true in the instant case as the duty of the guardian is to provide such, “consistent with and out of the resources of the ward’s estate.” Ark. Code Ann. § 28-65-801(a)(l). In this case, Ms. Osborne’s estate was sizeable.

Our standard for review of the circuit court’s disallowance of these expenditures is whether the circuit court clearly erred. However, the circuit court’s order leaves me at a loss as to the basis for the disal-lowance. It is impossible to tell whether the circuit court disallowed the expenditures because (1) Blair failed to obtain an order from the court prior to expending, (2) Blair lacked any documentation to support the expenditures, or (3) the circuit court disbelieved Blair’s testimony that these expenditures were for his mother’s benefit. Because it is unclear on what basis the circuit court disallowed the expenditures, and because it would appear that there is at least some question as to whether some of these expenditures were for Ms. Osborne’s care, maintenance, and education, it seems to me that the circuit court erred in its blanket disallowance of these expenditures. I would therefore reverse and remand on the question of the propriety of these expenditures.

Financial Assistance to Ms. Osborne’s Daughter

Blair further testified that Cheryl Faulkner was his handicapped sister to whom he had |1fipaid $22,915 from his mother’s funds. He stated that Ms. Osborne had always provided her daughter with support and paid for the house in which Cheryl lived, as well as the yard’s care. And, he testified that he continued this support based on instructions he had received from his mother and her husband before his mother became incompetent.

As set forth above, Ark. Code Ann. § 28-65 — 308(b) provides that a court may authorize a guardian to make gifts on behalf of the ward, upon a showing that the action would be advantageous to the ward and her estate. But in addition, section 28-65-309 permits the circuit court to direct a guardian to apply a designated amount to be extended for the care, maintenance, and education of the ward and of his or her dependents. Blair contended that he gave money to his sister on his mother’s behalf because that was what his mother had previously done and had wanted to be done. However, it appears from the circuit court’s order that the circuit court disallowed these payments to Ms. Osborne’s daughter because “the Guardian failed to follow through for an Order granting authorization for certain recurring expenditures.”

It appears to me that the circuit court’s finding of disallowance for these gifts was clearly erroneous where this court has previously held that a probate court does have jurisdiction to allow a guardian credit for amounts expended where the guardian was without an order to do so. See Robinson, supra. A probate court can approve the expenditures even after they have been made if the guardian can establish to the satisfaction of the probate court that such expenditures were reasonable and proper and were actually expended for the ward. See Shinley, supra.

117While it may be debatable whether Cheryl, due to her age, constituted a dependent for purposes of the statute, other courts have found the power of the court or guardian, “in part at least, on findings respecting what provision the incompetent himself, if sane or competent, would have made, [by] applying the ‘doctrine of substituted judgment.’ ” Annotation, Power of Court or Guardian to Make Noncharitable Gifts or Allowances Out of Funds of Incompetent Ward, 24 A.L.R.3d 863 (1969). While it does not appear to have been previously recognized by this court, the equitable “doctrine of ‘substituted judgment’ ” allows a court to “authorize a gift which the ward would have made, within limits as to reasonableness considering the size of the ward’s estate and the amount of income therefrom.” 39 C.J.S. Guardian & Ward § 89 (2013) (footnote omitted). Historically, the common-law doctrine of substituted judgment “was used to transcend the strict statutory limitations placed on a guardian of the estate with respect to the management of property of the ward.” In re Guardianship of F.E.H., 154 Wis.2d 576, 453 N.W.2d 882, 886 (1990). “In its traditional conception, the rule authorized the court to permit gifts from the disabled ward’s estate to persons to whom the ward owed no duty of support.” In re Marriage of Drews by Drews, 139 Ill.App.3d 763, 94 Ill.Dec. 128, 487 N.E.2d 1005, 1013 (1985). “In determining whether the incapacitated person would otherwise have contributed to the support of a relative to whom he or she owes no duty of support, consideration is given to the needs of the relative, the relationship and intimacy that he or she bore to the incapacitated person prior to the adjudication of incapacity, the present and probable future requirements of the incapacitated person, the existence of other dependents and the extent of such dependency, and the size and condition 11sof the estate.” 39 Am.Jur.2d Guardian & Ward § 109 (2013). “Where the evidence is sufficient, the court acts as it supposes the incapacitated person would have acted if he or she were of sound mind, and the amount and proportion of allowances thus made rest entirely within the discretion of the court.” Id. Blair asserted this doctrine in defending his expenditures, and I believe that the doctrine should be considered by the circuit court in determining whether Blair’s expenditures to Cheryl were valid under it, given Ms. Osborne’s history in so providing. Therefore, I would reverse and remand on these expenditures such that the circuit court could reconsider them in light of the doctrine set forth above.

Financial Assistance to Ms. Osborne’s Son

Blair also testified that he paid the monthly phone bill of his brother, Gary, as his mother had done. This was another recurring expenditure, which the circuit court disallowed because “the Guardian failed to follow through for an Order granting authorization for certain recurring expenditures.” Again, I believe that this finding was clearly erroneous based on our prior case law permitting a circuit court to approve expenditures even after made without a court order. Likewise, the equitable doctrine of substituted judgment might also apply to these expenditures, where it is claimed that Ms. Osborne was paying Gary’s phone bill before she became incapacitated. Accordingly, I would reverse the circuit court’s disallowance of these expenditures and remand for their consideration in light of the doctrine.

Financial Assistance to Aid in the Schooling of Ms. Osborne’s Grandson

| Additionally, Blair testified that his mother began paying for Oscar’s daycare in 2002 and his schooling after he graduated from daycare. As was the case with the financial assistance to Cheryl and Gary, the financial assistance for Oscar’s schooling was a recurring expenditure, and it is my opinion that the circuit court clearly erred in disallowing these payments on the basis that no prior court order was obtained, for the reasons already set forth. But too, I believe they should be considered in light of the substituted-judgment doctrine. Accordingly, I would reverse the disallowance thereof and remand for further consideration.

Donations to Ms. Osborne’s Church

Finally, Blair testified that he continued to provide Ms. Osborne with an offering to her church each week. He testified that, of her eighty years, she had taken an offering to church for seventy-six of them. As already set forth, I believe the circuit court erred in disallowing these recurring expenditures on the basis that no court order was previously obtained, where we have held that a circuit court is authorized to permit such expenditures after the fact. Moreover, an argument could certainly be made that such donations fall within the care and maintenance of Ms. Osborne’s spiritual health. But also, as already set forth, they might be approved based on the doctrine of substituted judgment.

It is the duty of the guardian of an estate to exercise due care to protect and preserve the ward’s property. See Ark. Code Ann. § 28 — 65—301(b)(1)(A); Brasel v. Estate of Harp, 317 Ark. 379, 877 S.W.2d 923 (1994). In the instant case, Blair’s duty was to care for and maintain Ms. Osborne, consistent with and out of the resources of her estate, and to exercise 120due care to protect and preserve that estate. See Ark.Code Ann. § 28-65-301. His duty was not to Ms. Osborne’s heirs, but to her. For each of the foregoing reasons, I would reverse the disallowance of the above categories of expenditures and remand the matter to the circuit court for further consideration in light of my concerns outlined herein. I therefore respectfully concur in part and dissent in part.4

CORBIN and GOODSON, JJ., join.

. This language comes from this court’s decision in Lord v. Mazzanti, 339 Ark. 25, 2 S.W.3d 76 (1999), wherein this court said:

Our Rule 60(a), which is identical to Fed. R.Civ.P. 60(a), reads as follows:
Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own motion or on the motion of any party and after such notice, if any, as the court orders. During the pen-dency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court and thereafter while the appeal is pending may be so corrected with leave of the appellate court. (Emphasis added.)

Rule 60(a) is merely a restatement of Arkansas's well-settled law, empowering the trial court to enter nunc pro tunc judgments to cause the record to speak the truth, whether in criminal or civil cases. Just recently we upheld a trial court's authority to enter an order nunc pro tunc in a criminal case when more than a year and a half had passed since the original judgment had been filed and mandate had issued. While we noted in McCuen [v. State, 338 Ark. 631, 999 S.W.2d 682 (1999)] that Rule 60(a) itself does not specifically refer or apply to a criminal case, it is obvious that Rule 60(a) does apply to civil cases, and its plain language adopts the same longstanding rule utilized in all cases — that trial courts may correct clerical errors at any time. In these circumstances, a trial court’s power to correct mistakes or errors is to make the record speak the truth, but not to make it

speak what it did not speak but ought to have spoken.

339 Ark. at 28-29, 2 S.W.3d at 78-79 (internal citations and footnote omitted) (all emphasis in original).

. As noted by the majority, Blair also challenges the circuit court’s entry of judgment against him personally for the $15,000, attorney’s fees, and investment losses; however, these arguments are raised for the first time in his reply brief. This court will not consider arguments made for the first time in an appellant’s reply brief because the appellee is not given a chance to rebut the argument. See Coleman v. Regions Bank, 364 Ark. 59, 216 S.W.3d 569 (2005).

. Arkansas Statute Annotated § 57-307 provided, in pertinent part:

Expenditures. — The probate court may direct a guardian to expend for the maintenance and education of his ward a specified sum, although such sum may exceed the income of the ward’s estate; but, without such direction, the guardian shall not be allowed, in any case, for the maintenance and education of the ward, more than the clear income of the estate.

Robinson, 228 Ark. at 331, 307 S.W.2d at 858. Section 57-632, however, provided that

[t]he guardian of the estate ... may apply to the court for an order directing the guardian ... to apply a designated amount periodically as the court may direct, to be expended in the care, maintenance and education of the ward.... In proper cases the court may order payments of amounts directly to the ward for his maintenance or incidental expenses. The amounts authorized under this section may be decreased or increased from time to time by direction of the court.

Id. at 332, 307 S.W.2d at 858.

. I would also deny Duane and Michael’s motion to strike portions of Blair’s reply brief, which this court held in abeyance until the submission of the case.