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Rogers v. Ritchie

Court of Appeals of Arkansas, Division II

September 6, 2017



          Wolff & Ward, PLLC, by: Rufus E. Wolff; and Rogers, LLP, by: John M. Rogers, for appellant.

          Sharp & Sharp, P.A., by: J. Baxter Sharp III, for appellee.


         In this 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.

         I. Background

         In 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.[1]

         Later, 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.

         As 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 all expenses.

          John 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.

         Barbara 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.

         The 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.

         A 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.

         Barbara 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 ...

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