FROM THE PULASKI COUNTY CIRCUIT COURT, NINTH DIVISION [NO.
60PR-07-1692] HONORABLE MARY SPENCER MCGOWAN, JUDGE
& Ward, PLLC, by: Rufus E. Wolff; and Rogers, LLP, by:
John M. Rogers, for appellant.
& Sharp, P.A., by: J. Baxter Sharp III, for appellee.
J. GLADWIN, JUDGE
appeal, we primarily consider whether certain expenditures
were permissible expenses of the guardianship of John Collins
Rogers. After years of litigation, the Pulaski County Circuit
Court, Ninth Division, entered an order allowing and
disallowing certain expenditures and terminating the
guardianship. Both Barbara Rogers as guardian of John Collins
Rogers and Florida Martin Ritchie as personal representative
of John Collins Rogers's estate subsequently appealed.
2004, the Pulaski County Circuit Court, Thirteenth Division,
entered an order appointing John Collins Rogers's wife,
Barbara Rogers, as guardian of his person and estate. Prior
to the initiation of guardianship proceedings, John worked as
a financial investor at John Collins Rogers & Co. An
accounting firm was hired to audit John's books, and it
was discovered that he was depositing money from clients'
trusts into a single commingled account that he used to pay
his personal expenses. One entity affected by John's
actions was the Martin Family Trust. As a result of
John's business practices, the Martin Family Trust
obtained a $723, 167.76 consent judgment against Barbara in
her capacity as John's guardian.
Florida Martin Ritchie and Katherine Ann Martin Jaco, in
their capacities as trustees of the Martin Family Trust,
petitioned the circuit court to set aside the order
appointing Barbara as guardian. They alleged that the order
should be set aside because it was granted without adherence
to Arkansas law for the appointment of guardians-pertinent to
this appeal is their allegation that Barbara's petition
should not have been granted because it lacked the requisite
professional evaluation of John's medical and physical
condition. Barbara defended her status as John's
guardian, and the circuit court denied the request to set
aside the guardianship order.
guardian of John's estate, Barbara was responsible for
exercising due care to protect and preserve his estate and to
regularly account for it so that, in the event of his death,
she could deliver assets to the persons entitled to them.
See generally Ark. Code Ann. § 28-65-301 (Repl.
2012). Barbara failed to comply with her statutory
responsibilities. She did not perform an inventory, nor did
she provide the circuit court with an annual accounting.
Additionally, she utilized two family bank accounts to pay
died in June 2007. His estate was assigned to the Pulaski
County Circuit Court, Ninth Division. In January 2008,
Florida Martin Ritchie requested to be appointed as the
personal representative of John's estate by virtue of the
Martin Family Trust's judgment against John. The circuit
court appointed Florida as personal representative of
John's estate and entered an order transferring the
guardianship case, previously assigned to the Thirteenth
Division, to the Ninth Division.
filed a final accounting and motion to terminate the
guardianship shortly following the January 2008 hearing.
Florida, as personal representative of the estate, objected
to several of Barbara's expenditures that were found to
be expenses of the guardianship.
parties disputed for several years whether certain
expenditures were allowable expenses of the guardianship.
Barbara consistently argued that the guardianship was
insolvent, and Florida, on behalf of the estate, asserted
that the guardianship had a surplus that could be paid to its
creditors. Because of Barbara's actions and inactions as
John's guardian, the circuit court had understandable
difficulty in surmising whether John's estate had any
assets at his death.
hearing was convened in May 2009. The parties agreed that
Barbara would file an amended accounting because the previous
filing did not reflect all receipts and disbursements.
Additionally, the circuit court heard argument from
Barbara's counsel on whether, in cases in which the
guardian is the spouse of the ward, allowable expenses of the
guardian can include the expense of maintaining the household
in which the guardian and ward reside-in essence, whether a
ward's funds may be used to support others. The circuit
court found as a matter of law that Barbara was not entitled
to support herself with John's funds.
prepared an amended final accounting in August 2009, and
Florida objected to it. In November 2009, the parties
appeared again in circuit court, and the circuit court took
evidence on the expenditures and assets ...