{ "id": 1453627, "name": "IN THE MATTER OF THE GUARDIANSHIP OF William VESA, An Adult Incapacitated Person Helena M. Lairamore, Appellant", "name_abbreviation": "In re the Guardianship of Vesa", "decision_date": "1995-02-20", "docket_number": "94-827", "first_page": "574", "last_page": "583", "citations": [ { "type": "official", "cite": "319 Ark. 574" }, { "type": "parallel", "cite": "892 S.W.2d 491" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "310 Ark. 244", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898841 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0244-01" ] }, { "cite": "228 Ark. 910", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725152 ], "weight": 2, "year": 1958, "opinion_index": 0, "case_paths": [ "/ark/228/0910-01" ] }, { "cite": "57 N.E.2d 573", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1944, "opinion_index": 0 }, { "cite": "317 Mass. 195", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 927269 ], "year": 1944, "opinion_index": 0, "case_paths": [ "/mass/317/0195-01" ] }, { "cite": "231 Ark. 197", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1697045 ], "weight": 4, "year": 1959, "pin_cites": [ { "page": "205" }, { "page": "574" } ], "opinion_index": 0, "case_paths": [ "/ark/231/0197-01" ] }, { "cite": "Ark. Code Ann. \u00a7 28-48-105", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(a)(2)", "parenthetical": "1987 & Supp. 1993" } ], "opinion_index": 0 }, { "cite": "314 Ark. 54", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912827 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/314/0054-01" ] }, { "cite": "319 Ark. 275", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453638 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/319/0275-01" ] }, { "cite": "306 Ark. 515", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900954 ], "weight": 2, "year": 1991, "pin_cites": [ { "parenthetical": "per curiam" }, { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/ark/306/0515-01" ] }, { "cite": "316 Ark. 499", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907821 ], "weight": 3, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/316/0499-01" ] }, { "cite": "Ark. Code Ann. \u00a7 28-1-116", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "parenthetical": "1987 & Supp. 1993" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 731, "char_count": 16461, "ocr_confidence": 0.883, "pagerank": { "raw": 2.368062312640717e-07, "percentile": 0.7950673958211464 }, "sha256": "33197167ca3bed373d3a3389b490d1386996308cc600924bc3faffa1344d32f8", "simhash": "1:533ce53a26c8928b", "word_count": 2724 }, "last_updated": "2023-07-14T15:29:57.133828+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "IN THE MATTER OF THE GUARDIANSHIP OF William VESA, An Adult Incapacitated Person Helena M. Lairamore, Appellant" ], "opinions": [ { "text": "Donald L. Corbin, Justice.\nAppellant, Helena M. Lairamore, is the former guardian of the estate and person of the ward, William Vesa, an adult incapacitated person. Appellant appeals three orders of the Crawford County Probate Court: (1) order entered December 29, 1993 removing her as guardian of the ward\u2019s estate, (2) order entered February 8, 1994 removing her as guardian of the ward\u2019s person, and (3) order entered June 30, 1994 denying her motion for stay pending appeal, motion to reconsider previous rulings, and denying her effort to show cause why she should not be held in contempt of court for alleged failure to comply with court orders. We affirm the probate court\u2019s judgment in part, and dismiss the appeal in part.\nThe ward in this case, William Vesa, lived a reclusive life with his father, Alexander Vesa, on a nine-acre farm in Crawford County. On September 4, 1992, Alexander Vesa died intestate, survived by two sons: William and Alexander Vesa, Jr. (Alex), and two daughters: appellant and Patricia Taylor (Patricia). In addition to their inheritance from the decedent\u2019s probate estate, William and Alex, who had owned the farm jointly with the decedent as joint tenants with rights of survivorship, received that property outside probate. William\u2019s inheritance and interest in the farm ultimately constituted his guardianship estate which was valued in the initial estate inventory at $140,893.86.\nOn February 2, 1993, appellant petitioned the probate court to establish a guardianship for William\u2019s estate and person and to appoint her as guardian. A hearing was conducted. On May 6, 1993, the court filed an order finding that William was an incapacitated person in need of a guardianship for his estate and person. Over Alex\u2019s objection, the order confirmed appellant as the initial guardian of both.\nOn December 29, 1993, the court filed an order removing appellant as guardian of William\u2019s estate, appointing a local bank as successor guardian of the estate, and confirming that appellant would continue to serve as guardian of William\u2019s person. The order also directed appellant to file her final accounting of the guardianship estate and to transfer the assets to the bank, as the successor guardian of William\u2019s estate. From this order, appellant filed her first notice of appeal in January 1994.\nOn February 8, 1994, the court filed an order removing appellant as guardian of William\u2019s person, and appointing William\u2019s guardian ad litem, attorney Paul Post, as successor guardian of William\u2019s person. In this order, the court found that appellant had failed to comply with its December 1993 orders to file her final accounting of the guardianship estate and to transfer its assets to the bank, and directed appellant to appear and show cause why she should not be held in contempt for this noncompliance. From this order, appellant filed her second notice of appeal in February 1994.\nPursuant to Ark. Code Ann. \u00a7 28-1-116 (1987 & Supp. 1993), a right to review by this court lies from all probate court orders, other than an order removing a fiduciary for failure to give a new bond or render an accounting required by the court, or an order appointing a special administrator. Section 28-1-116 (a) and (b). Section 28-1-116(g) also states that the law and rules applicable to appeals from equity courts apply equally to appeals from probate court, except as otherwise provided in the probate code. This court has stated that Rule 2 of the Arkansas Rules of Appellate Procedure preserved the statutory rights of appeal which were in existence at the effective date of the appellate rules, July 1, 1979. Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994). These preserved rights of appeal include those granted under section 28-1-116, which was enacted in 1949. Id.\nOur jurisdiction of this appeal is proper pursuant to section 28-1-116 and Ark. Sup. Ct. R. l-2(a)(3), except for that part of-the appeal taken from the order entered February 8, 1994 removing appellant as guardian of William\u2019s person for her failure to comply with its order to render an accounting and transfer the guardianship assets. Section 28-1-116(b). Therefore, we dismiss that part of the appeal taken from the probate court\u2019s order entered February 8, 1994 removing appellant as guardian of William\u2019s person. See In the Matter of the Estate of McLaugh lin, 306 Ark. 515, 815 S.W.2d 937 (1991) (per curiam) (dismissing appeal from order refusing to appoint a special administrator, for lack of an appealable order). We proceed to address appellant\u2019s other arguments for reversal.\nThis court reviews appeals from probate court de novo upon the record as abstracted. Clardy v. Williams, 319 Ark. 275, 890 S.W.2d 276 (1995). Absent clear error, we do not reverse the probate court\u2019s order. In Re Estate of Spears, 314 Ark. 54, 858 S.W.2d 93 (1993).\nFIRST POINT OF APPEAL\nAppellant\u2019s first point of appeal is that the order removing her as guardian of William\u2019s estate entered December 29, 1993 is erroneous in both form and substance. Essentially appellant argues the court erred, first, because it never gave her the requisite opportunity to appear and show cause why she should not be removed, pursuant to Ark. Code Ann. \u00a7 28-48-105(a)(2) (1987 & Supp. 1993), and, second, because none of the grounds for removal of a guardian, as set forth in section 28-48-105(a)(l), were proved or are supported by the evidence.\nArkansas Code Annotated \u00a7 28-65-219(b) (1987) states that a guardian may be removed \u201con the same grounds and in the same manner as provided in \u00a7 28-48-105 for the removal of a personal representative.\u201d Section 28-48-105, in turn, provides in pertinent part:\n(a)(1) When the personal representative becomes mentally incompetent, disqualified, unsuitable, or incapable of discharging his trust, has mismanaged the estate, has failed to perform any duty imposed by law or by any lawful order of the court, or has ceased to be a resident of the state without filing the authorization of an agent to accept service as provided by \u00a7 28-48-101(b)(6), then the court may remove him.\n(2) The court on its own motion may, or on the petition of an interested person shall, order the personal representative to appear and show cause why he should not be removed.\nIn this case, the probate court clearly acted on its own motion, and in the absence of a petition of any interested person, in removing appellant as guardian of William\u2019s estate. A plain reading of section 28-48-105 authorizes such action on the court\u2019s own motion, provided the removal order complies otherwise with the statute\u2019s requirements.\nWe find no clear error was committed in removing appellant as guardian of William\u2019s estate. We find that the section 28-48-105(a)(2) show cause requirement was substantially complied with. We find that the record supports appellant\u2019s removal on the statutory ground of \u201cunsuitability\u201d based on the court\u2019s finding of family friction, which adversely affected the guardianship estate\u2019s administration. Section 28-48-105(a)(1).\nOur de novo examination of the record shows that the probate judge first addressed the issue of removing appellant as guardian of the estate in his letter, dated October 26, 1993, to all counsel of record. The probate judge there stated:\nAnother suggestion that I would pass on for your consideration and that is that I believe that under the circumstances, it might be better for everyone concerned if a bank was appointed as Guardian of the Ward\u2019s Estate. They are better equipped to manage the same and pay the bills and this being a neutral Guardian, it would eliminate any family friction relative to the Ward\u2019s Estate. [Appellant] could continue to be Guardian of the Person, if she so desired, but I think the bank could function much better with regard to the objectives of the Guardianship, and that is to preserve, conserve, and protect the Ward\u2019s Estate for as long as it is possible.\nIn this letter, the probate judge also acknowledged receipt of a proposed order submitted by appellant for a petition which she had filed and which was then pending before the court for authority to sell stock and pay expenses of the ward; the probate judge directed the parties to review the pleadings. The probate judge concluded his letter by stating \u201cthe Court will set this matter for a short conference or hearing on its next Court day at Van Bur\u00e9n, so that the matters can be considered at that time.\u201d In her letter of reply to the probate judge and all counsel of record, dated November 2, 1993, appellant responded negatively and at length to the judge\u2019s suggestion to remove her as guardian of William\u2019s estate.\nProceeding without an intervening conference or hearing, the probate court then filed an order on November 29, 1993 authorizing a partial sale of guardianship estate stock and payment of certain guardianship expenses by appellant. The order concluded \u201cthis cause is continued for further hearing to put this Guardianship case in proper perspective and to eliminate as much expense as possible herein, excepting for the care, maintenance and support of the Ward.\u201d The order then designated December 7, 1993 for a hearing. The probate judge mailed a copy of this order to all counsel of record by cover letter dated November 23, 1993.\nOn December 7, 1993, the hearing was conducted and attended by appellant, Alex and William, each accompanied by his or her counsel of record. At the beginning of the hearing, the probate judge stated that the purpose of the hearing was to address several matters, including the judge\u2019s opinion that a bank should be appointed as guardian of the estate. Appellant testified at length, principally regarding the guardianship estate\u2019s receipts and expenditures. She also testified that she was willing to continue serving as guardian. At the conclusion of the hearing, the probate judge stated in open court:\nThe Court is going to appoint a bank as guardian of the estate of the ward, because that is in the best interest of the ward and everybody else concerned. The bank is neutral and they are well capable of handling these matters, and it will be a lot less expensive than what we have been undergoing in the past. It\u2019s in the ward\u2019s best interest to preserve, conserve and protect in that way, and also it will eliminate any possible friction from the family members because you folks need to get along with each other, speak with each other, communicate, be cordial and be kind, and not have trouble. And I think that this proceeding has not been helping you in that regard, so that\u2019s all the more reason to have a neutral take care of matters of that kind.\nOn December 29, 1993, the probate court filed an order dated December 7, 1993 which stated the probate judge\u2019s intention to remove appellant as guardian of the estate, in these words:\nThat in an effort to eliminate any possible future friction among the family members concerning this case, it is the Court\u2019s considered opinion that it is in the best interests of the ward and everyone concerned that a local bank be appointed guardian of the estate of the ward, and that a bank will be a neutral party well capable of handling the ward\u2019s financial interests. When such a bank has been appointed by the Court, the guardian shall file herein her final accounting.\nAlso on December 29, 1993, the probate court filed an order dated December 28, 1993 which removed appellant as guardian of William\u2019s estate and appointed her successor. With respect to the reason for the change of fiduciary, this order simply stated it was the court\u2019s considered opinion that it was in the ward\u2019s best interest and welfare to have a bank serve as guardian of the estate.\nOur probate code contains no definition of the term \u201cunsuitable.\u201d However, in Davis v. Adams, 231 Ark. 197, 328 S.W.2d 851 (1959), we quoted, with interest, the definition of this term given by the Supreme Court of the State of Massachusetts, as follows:\n\u201cThe statutory word \u2018unsuitable\u2019 gives wide discretion to a probate judge. . . . Such a finding may also be based upon the existence of an interest in conflict with his duty, or a mental attitude toward his duty or toward some person interested in the estate that creates reasonable doubt whether the executor or administrator will act honorably, intelligently, efficiently, promptly, fairly, and dispassionately in his trust. It may also be based upon any other ground for believing that his continuance in office will be likely to render the execution of the will or the administration of the estate difficult, inefficient or unduly protracted. Actual dereliction in duty need not be shown.\u201d\nId. at 205, 328 S.W.2d at 574 (quoting Quincy Trust Co. v. Taylor, 317 Mass. 195, 57 N.E.2d 573 (1944)). In Omohundro v. Erhart, 228 Ark. 910, 311 S.W.2d 309 (1958), we affirmed a probate court\u2019s order removing and replacing sibling co-guardians upon several statutory grounds, including \u201cunsuitability,\u201d where the evidence showed their continuous bickering and failure to agree over the twelve-year period in which they served as their sister\u2019s co-guardians was beyond reconciliation.\nWe find the record in this case is replete with evidence of an adversarial sibling relationship which existed between appellant and Patricia vis-a-vis Alex, and the negative impact of that \u201cfamily friction\u201d upon the administration of William\u2019s guardianship estate. In particular, we note the following conflicts between the siblings during the few months of appellant\u2019s service as guardian of the estate: (1) Alex\u2019s differences with his sisters regarding William\u2019s continued residence at the farm versus a group residential treatment center, (2) Alex\u2019s objection to a partition sale of the nine-acre farm petitioned for by appellant as William\u2019s guardian, and (3) the joint motion for injunction filed by appellant and Patricia, and granted by the court, instructing Alex to refrain from harmful actions toward William. We also observe that the probate court, acting on its own motion prior to appellant\u2019s removal as guardian of William\u2019s estate, indefinitely continued the appointment of William\u2019s guardian ad litem in light of this family friction.\nOn these facts, we conclude the probate judge committed no clear error in removing appellant as guardian of William\u2019s estate and appointing a neutral successor.\nSECOND POINT OF APPEAL\nAppellant\u2019s second point of appeal is that the probate court erred in refusing to partition the farm \u201cfrom the outset of the case,\u201d and in refusing to allow the guardianship estate recovery of one-half of the attorney fees for partition from Alex, as the co-owner. Appellant fails to identify any order or ruling in the record which refuses to partition the farm, or refuses to allow the guardianship estate recovery of the described attorney fees. We find no notice of appeal filed from any such ruling. Hence this point of appeal is not properly before this court and will not be addressed.\nTHIRD POINT OF APPEAL\nAppellant\u2019s third point of appeal is that the probate court erred in denying her motion for stay pending appeal, motion to reconsider previous rulings, and denying her effort to show cause why she should not be held in contempt of court for her alleged failure to comply with court orders. This point of appeal arises from the probate court\u2019s rulings which were rendered from the bench in open court on April 25, 1994, and filed of record by order entered on June 30, 1994. Appellant filed her notice of appeal from these rulings on April 28,1994. Therefore the notice of appeal was filed prematurely. In consequence, any appeal from the June 30, 1994 order was not properly perfected for this court\u2019s review, and must be dismissed. Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992).\nIn summary, we affirm the probate court\u2019s order entered on December 29,1993 removing appellant as guardian of the ward\u2019s estate, and dismiss other arguments raised in this appeal without considering their merits.", "type": "majority", "author": "Donald L. Corbin, Justice." } ], "attorneys": [ "Karr, Huthinson & Stubblefield, P.A., by: Michael E. Stubblefield, for appellant.", "Morril Harriman, Jr., for Citizens Bank & Trust Co. of Van Bur\u00e9n, Arkansas.", "Bethell & Cromwell, by: Bruce H. Bethell, for Alex Vesa, Jr.", "Paul R. Post, Guardian of the Person in Succession." ], "corrections": "", "head_matter": "IN THE MATTER OF THE GUARDIANSHIP OF William VESA, An Adult Incapacitated Person Helena M. Lairamore, Appellant\n94-827\n892 S.W.2d 491\nSupreme Court of Arkansas\nOpinion delivered February 20, 1995\nKarr, Huthinson & Stubblefield, P.A., by: Michael E. Stubblefield, for appellant.\nMorril Harriman, Jr., for Citizens Bank & Trust Co. of Van Bur\u00e9n, Arkansas.\nBethell & Cromwell, by: Bruce H. Bethell, for Alex Vesa, Jr.\nPaul R. Post, Guardian of the Person in Succession." }, "file_name": "0574-01", "first_page_order": 608, "last_page_order": 617 }