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In re Williams

Court of Appeals of Missouri, Western District, Fourth Division

April 16, 2019

IN THE MATTER OF VIRGIL D. WILLIAMS, Respondent,
v.
BETTY LOU WILLIAMS, Appellant. JANET ROSENAUER, ANDREW COUNTY PUBLIC ADMINISTRATOR, AS HIS GUARDIAN AND CONSERVATOR, Respondent,

          Appeal from the Circuit Court of Andrew County, Missouri The Honorable David Lynn Bolander, Judge

          Before: Karen King Mitchell, Chief Judge Presiding, Alok Ahuja, and Thomas N. Chapman, JJ.

          THOMAS N. CHAPMAN, JUDGE

         Betty Williams appeals from the judgment of the probate division of the Circuit Court of Andrew County denying her motion seeking to remove the public administrator as guardian and conservator for her husband, Virgil Williams, and seeking to appoint herself and her daughter as successor co-guardians and co-conservators. Betty Williams also appeals from the circuit court's judgment allowing the public administrator to collect her attorneys' fees from the estate of Virgil Williams. We affirm the circuit court's judgments.

         Facts & Procedure

         In November of 2015, the Circuit Court of Andrew County declared Virgil Williams (Virgil)[1] totally incapacitated and disabled as a result of Alzheimer's-related dementia, alcohol abuse, and poor short-term memory. At that time, the circuit court had before it competing petitions for the appointment of a guardian and conservator: one filed by Virgil's wife, Betty Williams (Betty); one filed by Virgil's son, Ricky Williams (Ricky), and daughter-in-law, Linda Williams (Linda); and one filed by Virgil's other son, Jeffrey Williams (Jeff). Betty requested that the public administrator be appointed to serve as Virgil's guardian and conservator; Jeff requested that he be appointed to serve in that role; and Ricky and Linda petitioned to be appointed as co-guardians and conservators. After hearing the evidence, the circuit court appointed Ricky and Linda to serve as co-guardians and conservators for Virgil.

         In January of 2016, Ricky died. Thereafter, while Linda served as his sole guardian and conservator, Virgil was placed in Oak Pointe of Kearney Senior Living skilled nursing facility. Virgil's daughter, Kim Bauman (Bauman), then petitioned the circuit court for Linda's removal and filed an application to be appointed as his guardian and conservator. While Bauman was not appointed, Virgil's family members arrived at a compromise wherein (1) Virgil would be moved to the Shady Lawn nursing facility in Savannah, Missouri; (2) Linda would be removed from her role as his guardian and conservator; and (3) the public administrator would be appointed to serve as his guardian and conservator.

         In September of 2016, Linda was removed and the public administrator, Janet Rosenauer (Rosenauer), was appointed as Virgil's successor guardian and conservator. In September of 2017, Betty filed a motion in the circuit court alleging, among other things, that Rosenauer had placed unjust limitations on her and Bauman's visitation with Virgil and prevented her from obtaining Virgil's medical information or participating in his medical decision making. The motion requested that Rosenauer be removed as Virgil's guardian and that Betty and Bauman be appointed as co-guardians. On the same day, Betty filed a separate motion to terminate Rosenauer as Virgil's conservator, alleging as the basis for this motion that Rosenauer had mismanaged and failed to protect and preserve Virgil's funds and assets. This motion also requested that Betty and Bauman be appointed as co-conservators.

         A trial was held on Betty's motions in November of 2017 and January of 2018. Evidence was provided by Virgil's children and children-in-law; a family friend of Virgil and Betty; Shady Lawn's medical staff; Rosenauer; and Virgil's guardian ad litem, John Brage. Bauman testified that Rosenauer had limited the number of visits allowed for Virgil's family members and required visits to be supervised; limited the family to one outing with Virgil per family member per month; limited each family member to one ten-minute phone call per day; and ordered the family not to take Virgil to visit his home.

         Letters written by Rosenauer were introduced in support of Bauman's testimony. In her letters, Rosenauer explained that Virgil's dementia prevented him from understanding or handling problems and complaints brought to him by his family members. She further explained that overstimulation caused Virgil to become combative and made him try to escape from the nursing home. Rosenauer urged the family to maintain a positive attitude in Virgil's company, not to complain about other family members, not to complain about Shady Lawn, and not to tell Virgil that he would be returning to his home. She warned that she would "not tolerate people upsetting Virgil."

         Rosenauer elicited testimony from Virgil's children and children-in-law regarding a history of dissension among the family members that made the appointment of the public administrator necessary. Linda testified that, following Ricky's death, Betty told Linda that she was not a part of the family and then severed ties with Linda as well as Linda's children and grandchildren. When Linda would not agree to allow Bauman to serve as co-guardian and conservator, Bauman became irate and had to be restrained by Betty. Betty's sale of the family farm to Bauman's children in 2013, rather than to one of Betty's sons who had expressed interest in purchasing it, created hard feelings among the family and contributed to their estrangement.

         In his trial testimony, Virgil's guardian ad litem noted that Betty needed assistance with her own finances, and recommended that Rosenauer continue to serve as Virgil's guardian and conservator. He did not believe Bauman should serve in that role, as he had "concern about the dynamics between the siblings creating problems down the road…."

         At the conclusion of the trial, the circuit court determined that there was insufficient evidence to remove Rosenauer from her position as Virgil's guardian and conservator. The circuit court further found that Rosenauer had incurred attorneys' fees during the course of the litigation involving Betty and allowed these fees to be taxed against Virgil's estate.

         Betty timely appeals from the circuit court's judgments denying her motion for Rosenauer's removal and allowing Rosenauer's attorneys' fees to be paid out of Virgil's funds.

         Discussion

         Betty makes three points on appeal. She argues (1) that the circuit court erred, because its judgment allowing Rosenauer to continue as Virgil's guardian and conservator was not supported by substantial evidence and was against the weight of the evidence, because the evidence demonstrated that Betty and Bauman were competent to serve as Virgil's co-guardians and co-conservators, and that Rosenauer's continued service in that capacity therefore exceeded her statutory authority as public administrator; (2) that the circuit court's judgment declining to remove Rosenauer as Virgil's guardian and conservator was against the weight of the evidence in that Rosenauer had failed to act in Virgil's best interests; and (3) that the circuit court misapplied the law in allowing Rosenauer's attorneys' fees to be taxed against Virgil's estate. Finding no error, we affirm.[2]

          "A court-tried probate case is reviewed under the standard of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Under that standard, the probate court judgment will be sustained 'unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.'" In re Estate of Schooler, 204 S.W.3d 338, 342 (Mo. App. W.D. 2006) (quoting Murphy, 536 S.W.2d at 32). "Substantial evidence is evidence that, if believed, has some probative force on each fact that is necessary to sustain the circuit court's judgment." Ivie v. Smith, 439 S.W.3d 189, 199 (Mo. banc 2014). "The against-the-weight-of-the-evidence standard serves only as a check on a circuit court's potential abuse of power in weighing the evidence, and an appellate court will reverse only in rare cases, when it has a firm belief that the decree or judgment is wrong." Id. at 206.

         In determining whether the judgment is supported by substantial competent evidence, "we view the evidence and reasonable inferences from the evidence in the light most favorable to the judgment, disregard all evidence and inferences contrary to the judgment, and defer to the trial court's credibility determinations." Estate of Briggs, 449 S.W.3d 421, 425 (Mo. App. S.D. 2014). "A claim that the trial court erroneously declared or applied the law is reviewed de novo." Id.

         In her first point, Betty argues that the judgment allowing Rosenauer to continue as Virgil's guardian and conservator was not supported by substantial evidence and was against the weight of the evidence, [3] because Betty and her daughter were competent to serve as Virgil's guardian and conservator, and because Rosenauer's continued service in that capacity therefore exceeded her authority as public administrator.[4] We note that the public administrator "is a public officer and must be presumed to have acted correctly and within the purview of [her] statutory authority." Vermillion v. Le Clare, 89 Mo.App. 55, 61 (Mo. App. 1901).

         Betty concedes that Rosenauer's appointment was necessary in 2016 in order to facilitate Virgil's transfer from Kearney to Savannah; but argues that Rosenauer's continued appointment is now unnecessary because Virgil no longer drinks alcohol (making it easier for his family to attend to his needs) and because he has been successfully relocated to a nursing facility closer to Betty's and Bauman's homes. Betty argues that (if the guardianship and conservatorship were to continue) she and Bauman would be "competent" to serve, making the service of the Public Administrator unnecessary and beyond the scope of her duties; and that either Betty or Bauman, or both of them, should have been named as Virgil's successor guardian and conservator.

         In support, Betty cites § 473.730, which provides the qualifications of a public administrator to take office, and states nothing with respect to whether and when a public administrator may be appointed as guardian or conservator. Since there has been no challenge to Rosenauer's status as the duly elected public administrator, the application of § 473.730 does ...


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