                                Cite as 2017 Ark. App. 420


                ARKANSAS COURT OF APPEALS
                                      DIVISION II
                                    No.  CV-16-639

BARBARA ROGERS                               Opinion Delivered:   SEPTEMBER 6, 2017
   APPELLANT/CROSS-APPELLEE
                                             APPEAL FROM THE PULASKI
                                             COUNTY CIRCUIT COURT,
                                             NINTH DIVISION
V.                                           [NO. 60PR-07-1692]

                                             HONORABLE MARY SPENCER
                                             MCGOWAN, JUDGE
FLORIDA MARTIN RITCHIE
   APPELLEE/CROSS-APPELLANT AFFIRMED IN PART; REVERSED
                            AND REMANDED IN PART ON
                            DIRECT APPEAL; REVERSED AND
                            REMANDED ON CROSS-APPEAL

                            ROBERT J. GLADWIN, Judge

       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
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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.




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       Barbara sought and obtained a guardianship over John seven days before a jury trial
was scheduled to begin in the matter of Florida Martin Ritchie, et al. v. John Collins Rogers.
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       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


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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 of the guardian. The hearing was adjourned

without a formal ruling.

         Several years later in April 2015, Barbara filed a second amended final accounting,

and Florida again objected. The circuit court held a hearing in October 2015 and entered a

final order in March 2016. This order allowed and disallowed certain expenditures made

by Barbara during the pendency of the guardianship. The circuit court found that a balance

of $56,431.87 was available to transfer to John’s estate, transferred that amount to his estate,

and closed the guardianship. Barbara timely filed her notice of appeal, and Florida timely

filed her notice of cross-appeal.

         On direct appeal, Barbara argues that the circuit court erred by (1) finding as a matter

of law that she was not entitled to support herself with John’s funds, (2) disallowing certain

expenditures that were made to care and maintain the ward and his dependents without

ruling on whether they were reasonable and proper and expended on the ward, (3)

specifically disallowing expenditures for food and nutrition and storage-unit fees, and (4)

refusing to find the order appointing Barbara as guardian void on its face. On cross-appeal,

Florida contends that the circuit court erred in allowing two expenditures as expenses of the

guardianship—funeral expenses and MetLife/NE Financial Life Insurance premiums.




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                                   II. Standard of Review

       Probate cases are generally reviewed de novo, and this court does not reverse a circuit

court unless its findings are clearly erroneous. Seymour v. Biehslich, 371 Ark. 359, 266

S.W.3d 722 (2007). A finding is clearly erroneous when, although there is evidence to

support it, the appellate court is left on the entire evidence with the firm conviction that a

mistake has been committed. Id. However, we give no deference to the circuit court on

matters of law. Freeman v. Rushton, 360 Ark. 445, 202 S.W.3d 485 (2005).

                                 III. Barbara’s Direct Appeal

       The order appointing Barbara as John’s guardian was entered without the requisite

evidence of John’s incapacity from a qualified professional. See generally Ark. Code Ann. §§

28-65-211 & 28-65-212. We begin our analysis by considering whether this deficiency

renders the guardianship void on its face because the disposition of this question affects the

remaining issues on appeal.

       It is clear that in this instance our statutory requirements were not followed and the

circuit court should not have initially granted this guardianship. However, we decline to

reverse on this point. “It is fundamental that, pursuant to the doctrine of invited error, an

appellant cannot request a ruling . . . and then complain of that ruling on appeal.” Sec. Pac.

Hous. Servs., Inc. v. Friddle, 315 Ark. 178, 182, 866 S.W.2d 375, 377 (1993). Here, it was

Barbara who requested the guardianship and she who failed to obtain the requisite

professional evaluation. Furthermore, Barbara defended the validity of the guardianship

when Florida and Katherine Ann Martin Jaco, in their capacities as trustees of the Martin




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Family Trust, attempted to have it set aside. Pursuant to the invited-error doctrine, Barbara

is precluded from arguing that the guardianship is void. We affirm on this point.

       In each of Barbara’s remaining points on appeal, she challenges the circuit court’s

disallowance or reduction of certain expenditures made during the pendency of John’s

guardianship.   Those expenditures include food and nutrition expenses, automobile

payments, automobile-insurance premiums, storage-unit-rental fees, condominium-

maintenance fees on the house shared by Barbara and John, maintenance and repair on the

house, property and casualty insurance on the house, property taxes on the house, and life

insurance premiums.

       Barbara contends that the circuit court erred by disallowing or reducing these

expenditures when it ruled as a matter of law that funds of the guardianship could not be

expended for Barbara’s support. We agree.

       In Stautzenberger v. Stautzenberger, our supreme court held that expenditures that

contributed to the ward’s care and maintenance and that were consistent with the ward’s

previous pattern of expenditures and charitable giving could constitute permissible payments

for the ward’s maintenance. 2013 Ark. 148, 427 S.W.3d 17. This decision contemplates

that one could continue to be supported by a ward as long as the support may be “construed

to be proper for the care and maintenance of the ward.” Id. at 6, 427 S.W.3d at 21.

Additionally, the approval of these expenditures is predicated on whether they are

“reasonable and necessary.” Id. at 8, 427 S.W.3d at 22.

       Barbara was John’s spouse, and it was her testimony that he was the sole financial

provider for almost the entirety of their forty-year marriage. The circuit court erred as a


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matter of law when it disallowed these expenditures made for the benefit of Barbara without

consideration of whether they were reasonable, necessary, and proper for the care and

maintenance of the ward. Accordingly, we reverse and remand this issue to the circuit court

to consider whether these expenses were reasonable and proper and could be construed to

be proper for John’s care and maintenance.

       We acknowledge and accept the circuit court’s finding that Barbara’s actions made

it “almost impossible” to determine which expenditures were reasonable and proper and

actually expended for the ward. But irrespective of this finding, our law requires that the

circuit court determine whether expenditures for Barbara’s benefit were reasonable,

necessary, and proper for the care and maintenance of the ward, and we direct the circuit

court to review the ample evidence before it to make this determination.

       With this conclusion reached, we cannot delve into the merits of Barbara’s additional

arguments on appeal wherein she contends that the circuit court erred by its blanket

disallowance of certain expenditures and by specifically disallowing expenditures for food

and nutrition and storage-unit fees. The outcome of these issues necessarily requires the

circuit court to first consider whether it was reasonable and proper for funds of the

guardianship to be expended on Barbara’s behalf.

       Nevertheless, we recognize that certain issues are likely to arise on remand of this

case to the circuit court, and we take this opportunity to acknowledge that it is apparent the

circuit court made a clerical error when calculating food and nutrition expenses—the circuit

court indicated in its order that it had reduced the amount requested by Barbara to account

for only the money spent to feed John and his caregiver, although Barbara had already


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reduced the amount. Additionally, Barbara, as John’s guardian, had an obligation to care

and provide for John; accordingly, the circuit court should allow, at a minimum, some

expenditures for John’s housing, utilities, and transportation.

                                   IV. Florida’s Cross-Appeal

       On cross-appeal, Florida advances two arguments in favor of reversal. She challenges

the circuit court’s finding that John’s funeral expenses and the payment of life insurance

premiums were allowable expenses of the guardianship. 2

        First, Florida argues that the circuit court erred in finding that the $14,120.42

Barbara paid for John’s funeral expenses was an allowable expense of the guardianship. We

agree. A guardianship terminates by law when the ward dies unless the guardian takes steps

to convert the case to a decedent’s estate. See Ark. Code Ann. §§ 28-65-401(a)(2) & 28-

65-323. Barbara never attempted to administer John’s estate after his death. In fact, Florida

petitioned to be named administrator of John’s estate because none of his family members

made efforts to become the personal representative of his estate. Because the guardianship

terminated at John’s death, his funeral expenses were not proper expenses of the

guardianship, and we reverse and remand on this point and direct the circuit court to

disallow this expenditure.

       Florida also challenges the circuit court’s ruling that the $1,274.66 paid in

MetLife/NE Financial Life Insurance premiums was an allowable expense of the

guardianship.      Barbara’s verified second amended final accounting indicates that the

MetLife/NE Financial Life Insurance premiums were paid on existing policies for her life


       2
           Barbara does not address Florida’s arguments on cross-appeal.
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and John’s life. Barbara testified that the MetLife insurance policy could have been hers and

that she did not know how much the premium on her policy would have been. She

concluded by saying that she just paid the same premiums John had historically paid.

       On this point, we must again reverse and remand to the circuit court. It is clear from

the evidence that the money expended on insurance premiums went toward policies on

both Barbara’s and John’s lives. On remand, the circuit court is directed to consider whether

the money expended for Barbara’s insurance premiums was proper for the care and

maintenance of John. If not, the circuit court is directed to reduce the allowable amount

of this expenditure to account for only those premiums paid on John’s behalf because the

evidence is clear that only a portion of the $1,274.66 paid in life insurance premiums was

for John.

       Affirmed in part; reversed and remanded in part on direct appeal; reversed and

remanded on cross-appeal.

       VIRDEN and BROWN, JJ., agree.

       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.




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