 




                                                                                         
                                       In the Missouri Court of Appeals
                                               Eastern District
                                                                       DIVISION FOUR

IN THE MATTER OF: DUANE R. BARNARD                                                )         No. ED102778
                                                                                  )
                                                                                  )         Appeal from the Circuit Court of
                                                                                  )         Knox County
                                                                                  )
                                                                                  )         Honorable Fred L. Westhoff
                                                                                  )
                                                                                  )
                                                                                  )         Filed: March 22, 2016

                                                                         Introduction

              Duane R. Barnard (Appellant) appeals from the probate court’s March 6, 2015 Final

Order and Judgment supplementing, modifying, completing and finalizing its December 23,

2014 Judgment of Partial Disability, appointing Appellant’s wife, Cheryl Barnard (Barnard),

limited conservator of Appellant’s estate.1 We reverse both judgments.

                                                               Factual and Procedural Background

              On January 16, 2014, Jon and Betty Jo Simmons (collectively Petitioners) petitioned the

probate court requesting their appointment as co-guardians and co-conservators for Appellant, 83

years old at that time, who Petitioners alleged was “unable to adequately manage his personal

needs without supervision ….” Petitioners alleged they were “close personal friends” of



                                                            
1
 Pursuant to the court’s March 6, 2015 judgment, Letters of Limited Conservatorship of a Partially Disabled Person
were issued to Barnard on March 9, 2015.
Appellant and were the “current attorneys-in-fact of [Appellant’s] Durable Power of Attorney

with Healthcare Directives & Living Will.”

       On August 20, 2014, a hearing was held on the petition. Nurse practitioner Christine

Tisinger (Tisinger) testified that on December 30, 2013, approximately eight months earlier, she

administered one cognitive test, called a “clock test,” where Appellant was to draw the hands of

a clock on a piece of paper. Tisinger stated Appellant failed the test and so she found him

cognitively impaired, in that he “lacked the ability to make sound decisions because he lacked

the ability to show insight or communication clearly, and he had difficulty receiving speech or

spoken instructions as well.” She testified that if unsupervised Appellant could not meet his

essential needs for food, shelter and medical care and could not manage his financial resources.

       Kris Chambley (Chambley) of the Department of Health and Senior Services testified she

received a hotline report on December 30, 2013, the same date Appellant had his appointment

with Tisinger, regarding Appellant and claims of medical neglect and financial exploitation of

the elderly. Chambley had a visit with Appellant on January 4, 2014, and also interviewed

Barnard. Between January 4 and February 28, 2014, Chambley spoke with Appellant and

Barnard a few times and “suspected” Barnard of financial exploitation but eventually conceded

that she did not have the evidence to substantiate the report. Chambley had no further contact

with Appellant after February 28, 2014.

       The deposition of Dr. Eugene Childress (Dr. Childress), who periodically treated

Appellant and had last seen him on January 16, 2014, was admitted into evidence. He states in

his deposition that he believes Appellant “has functional dementia, which means he can carry

out, you know, his activities of daily living…” and he does not “believe that [Appellant] has the




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ability to do complex problem solving or such things as, you know, buying and selling stocks on

the exchange or, you know, diamonds or land…” but he could handle his normal daily expenses.

       Michael Williams (Williams), an attorney who had prepared amendments to Appellant’s

trust and worked on a real estate sale between Appellant and Petitioner Jon Simmons, testified

Appellant understood what he was doing regarding these legal matters.

       On August 20, 2014, after hearing evidence presented by Petitioners, the probate court

found Appellant “to be incapacitated and disabled, and in need of a guardian and conservator.”

The court memorialized its findings in a judgment dated October 8, 2014, appointed Appellant’s

daughter, Melinda Wentz (Daughter), and the Knox County Public Administrator Theresa

Hamlin (Hamlin), as co-guardians and co-conservators, and purported to void Appellant’s

marriage to Barnard and past financial transactions.

       On October 23, 2014, Appellant moved to set aside the court’s October 8, 2014 judgment

because: (a) he was not incompetent; (b) a full guardianship/conservatorship was unnecessary;

(c) the court had no jurisdiction to nullify his marriage; (d) the judgment was vague as to what

past financial transactions were void due to incompetency; and (e) the evidence at trial was not

clear and convincing as required.

       On October 31, 2014, the probate court stated that it was “willing to reopen the medical

evidence upon [Appellant’s] condition as it relates to incapacity and disability.”

       On December 5, 2014, the probate court heard testimony on Appellant’s motion to set

aside the court’s finding of disability. The docket entry indicates, “[Appellant] appears in person

and by Attorney Garrett. [Hamlin], [Daughter] and [Barnard] appear in person. No other

interested person appears in person or by counsel.” New evidence was presented at the

December 5, 2014 hearing. Psychiatrist Dr. Jeffrey Harden (Dr. Harden) examined and



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psychiatrically evaluated Appellant. His report was entered into evidence.2 The probate court,

familiar with Dr. Harden, called him “a very capable physician and psychiatrist.”

              Dr. Harden stated Appellant was a friendly, cooperative, engaging individual who

interacts in an emotionally appropriate fashion. Dr. Harden administered the clock test, in which

he instructed Appellant to draw the face of a clock indicating the time 11:10. Dr. Harden

reported “he did so in an accurate fashion quite readily.” Dr. Harden stated Appellant appeared

to be experiencing mild cognitive decline in that he had difficulty with sustaining his focus on

repetitive tasks, his ability to recall long-term events and his immediate recall seemed limited.

Dr. Harden noted his capacity for abstract thought and his judgment both seemed appropriate.

Dr. Harden assessed Appellant’s abilities to quickly focus his attention on an issue, understand

its implications, and come up with a clear plan of action is now such that he will require longer

periods of contemplation before he can achieve meaningful conclusions. Because of these

observations, Dr. Harden concluded that “consideration should be given” to Appellant having a

conservator and/or guardian in matters of finances and management of property and other

material resources because he believed such a conservator could serve the purpose of impeding

any sudden, rash or misdirected financial decisions that Appellant “might” be manipulated into.

Dr. Harden opined “it would be in Appellant’s best interest for him to select a durable power of

attorney to manage matters of healthcare, finances, domicile, etc. should he eventually be found

to be incapable of competently caring for himself in those matters.”

              Hamlin, the Knox County Public Administrator, whom the court had preliminarily

appointed to be Appellant’s co-guardian and co-conservator on August 20, 2014, also testified.

Hamlin testified she had a lot of personal contact with Appellant since becoming one of his co-
                                                            
2
 Dr. Harden’s report also refers to the reports of two other doctors. Dr. H. Ghanekar’s report stated Appellant was
“competent to manage legal business and financial affairs.” Dr. R. Hall, Ph.D.’s report found Appellant was
“functioning as a ‘normal and sane individual and needs no outside assistance.’”

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conservators and co-guardians on August 20, 2014. Like Dr. Harden, she found Appellant to be

“very outgoing, very friendly.” Her opinion was that Appellant is very well known in the

community and people enjoy his company. She said she personally sees Appellant and Barnard

visiting with people in restaurants. Hamlin also found Appellant to be “very intelligent.” She

learned he served as a Sergeant Major in the Army for 34 years.

       Hamlin testified Appellant lives on a farm with Barnard, and Appellant has shown

Hamlin around the buildings and operations of the farm. Appellant, according to Hamlin, is

definitely an active man, always on the go, whether it is mowing the yard, doing repairs, painting

the house or doing fence work. She said Appellant explained the intricacies of his farm to her as

they drove around it, explaining how a terrace farm works and the way the water is diverted to

take care of the fields. She stated the fields and terraces appear to be maintained and in good

condition, and their home is comfortable and clean. She said Appellant also has a home in

Mississippi he and Barnard visit.

       Hamlin testified she saw nothing to indicate Barnard was taking advantage of Appellant,

and on the contrary, Barnard was very supportive, helpful and cooperative.

       Hamlin testified Appellant definitely understands his business affairs, does his own

accounting, keeps accurate records and itemized documentation of his finances and transactions,

including lists, bills and receipts; and knows how much he has in the bank at all times. She

stated Appellant is very aware of and definitely capable of managing his finances, income,

expenses, and checkbook.

       Hamlin said before she became involved with Appellant, he had entered into the sale and

rental of certain property with Petitioners without a written contract, because Appellant stated he

believed a man’s word was his bond and sacred. The sale was for less than market value, and



                                                 5
 
Petitioner Jon Simmons defaulted on his payments, which Hamlin saw as Petitioner Jon

Simmons’ abuse of the situation, rather than due to mental unfitness on the part of Appellant.

       On December 23, 2014, the probate court entered a Judgment of Partial Disability, to the

effect that Appellant “shall be only disabled as to the transfer of major assets or their conversion

to another form. Permission shall also be obtained from the Court for after death transfer

designations not currently in place such as transfer on death designations or beneficiary deeds.”

The probate court set aside any prior, inconsistent decisions, including its October 8, 2014

judgment, and set aside any prior orders nullifying Appellant’s marriage to Barnard. Barnard

and Hamlin were appointed co-conservators for Appellant.

       On March 6, 2015, the trial court entered a Final Order and Judgment that

“supplement[ed], modifie[d], complete[d] and finalize[d]” its December 23, 2014 Judgment of

Partial Disability. This second judgment discharged Hamlin as co-conservator, leaving Barnard,

Appellant’s wife, as sole conservator. It also reduced conservatorship oversight from the transfer

of any major assets to the transfer only of real property. As to the powers and duties of the

conservator, the court specifically ordered as follows:

               The powers and duties of the limited conservator, [Barnard], shall include
       forbidding and not permitting any sale, transfer or conversion of real property as
       set forth in this Final Order and Judgment. Said limited conservator shall not
       transfer any title, legal or equitable, in any of the property to herself as limited
       conservator or otherwise. Said limited conservator, [Barnard], is dismissed and
       discharged as to any powers and duties she may previously have been charged
       with as to [Appellant’s] property that is not real property.

       On March 9, 2015, Letters of Limited Conservatorship of a Partially Disabled Person

were issued to Barnard, pursuant to the court’s March 6, 2015 Judgment. This appeal follows.




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                                                                Point on Appeal

              Appellant maintains the probate court erred in finding him partially disabled and

appointing a conservator for him because the decision was not based on clear and convincing

evidence and was in fact against the weight of the evidence in that Appellant is a normal

functioning 86-year-old.

                                                               Standard of Review

              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. Id. at

32; In re Estate of Schooler, 204 S.W.3d 338, 342 (Mo.App. W.D. 2006).

                                                                   Discussion

              A disabled person is one who is unable by reason of any physical or mental condition to

receive and evaluate information or to communicate decisions to such an extent that the person

lacks ability to manage his financial resources. Section 475.010(5)(a).3 The term disabled or

disabled person includes the terms partially disabled or partially disabled person. Section

475.010(5)(b). A partially disabled person is one who is unable by reason of any physical or

mental condition to receive and evaluate information or to communicate decisions to such an

extent that such person lacks capacity to manage, in part, his or her financial resources. Section

475.010(15). “Manage financial resources” means the ability to take those actions necessary to

obtain, administer, and dispose of real and personal property, intangible property, business

property, benefits, income or any assets, or those actions necessary to prevent waste, loss or


                                                            
3
    All statutory references are to RSMo 2012, unless otherwise indicated.

                                                                       7
 
dissipation of property. Section 475.010(12), Matter of Estate of Potashnick, 841 S.W.2d 714,

717 (Mo.App. E.D. 1992).

       Petitioners, seeking appointment as co-conservators and co-guardians of Appellant and

his property, have the burden of proving Appellant’s incapacity, partial incapacity, disability, or

partial disability by clear and convincing evidence. Section 475.075.7; Matter of

Conservatorship Estate of Moehlenpah, 763 S.W.2d 249, 261 (Mo.App. E.D. 1988); In re Myles,

273 S.W.3d 83, 85 (Mo.App. E.D. 2008). Clear and convincing evidence is evidence which

clearly convinces the fact finder of the truth of the proposition to be proved. Matter of Moore,

885 S.W.2d 722, 728 (Mo.App. W.D. 1994). For evidence to be clear and convincing, it must

instantly tilt the scales in the affirmative when weighed against the evidence in opposition and

the fact finder’s mind is left with an abiding conviction that the evidence is true. In re Marriage

of A.S.A., 931 S.W.2d 218, 222 (Mo.App. S.D. 1996).

       A conservator may be appointed to handle some or all of the financial affairs of an

alleged disabled person, Section 475.079, Matter of Nelson, 891 S.W.2d 181, 184 (Mo.App.

W.D. 1995), if there is clear and convincing evidence the individual is unable by reason of a

physical or mental condition to receive or evaluate information or to communicate decisions to

such an extent that he lacks the ability to manage his real property. Section 475.010(5)(a),

Section 475.075(7), Nelson, 891 S.W.3d at 184. The determination of whether to appoint a

conservator is based on the respondent’s condition at the time of the hearing. Thiel v. Miller,

164 S.W.3d 76, 86 (Mo.App. W.D. 2005).

       Petitioners filed the petition alleging disability on January 16, 2014. Petitioners set forth

their evidence and the court rendered its original judgment on October 8, 2014. On November

14, 2014, Petitioners’ attorney filed his motion for withdrawal. This motion was granted by the



                                                 8
 
probate court on November 18, 2014. The probate court then set aside its October 8, 2014

judgment which had been based on the evidence Petitioners had presented in support of their

petition. Petitioners then failed to participate in any other proceedings and abandoned their

petition. At the hearing on December 5, 2014, the court noted, “There is a motion filed for I

think reconsideration of the Court’s earlier judgment in the case. And further for the record, the

original Petitioners, Jon Simmons and Betty Jo Simmons appear not either in person or by

counsel.” However, the court noted the presence of Appellant and his attorney Jim Garrett, who

had filed the motion for reconsideration of the earlier judgment; Hamlin; and Daughter, who

with Hamlin had been appointed co-guardians and co-conservators for Appellant in the earlier

case.

        The probate court then rendered new judgments, on December 23, 2014 and March 6,

2015, the only ones challenged by Appellant in this appeal. In its December 23, 2014, judgment

the probate court stated, “Any prior Judgment or Order inconsistent with this Judgment is hereby

set aside, and held for naught, including the Court’s Judgment dated October 8, 2014. Any prior

order setting aside the marriage of [Appellant] and [Barnard] is hereby voided retroactively.”

        The new judgments of December 23, 2014, and March 6, 2015, based on new evidence

presented by Appellant, found him partially disabled and appointed Barnard, his wife, a limited

conservator whose sole duty and power was to forbid and not permit any sale of Appellant’s real

property.

        The probate court’s judgments leave Appellant with the right to make all of his own

decisions with regard to his handling of his finances and business affairs, conducting transactions

with regard to his personal property, running his substantial farm, and talking care of his medical

and personal needs, independently and autonomously and without the input of Barnard or



                                                 9
 
approval of the court. However, with regard to the very limited area of real property, the court

finds him mentally unfit to sell, transfer or convert it. This finding is against the weight of the

evidence.

       The record shows the original Petitioners in this case seeking Appellant to be declared

mentally unfit and for themselves to be appointed conservators over Appellant’s assets were the

very individuals who initially took advantage of Appellant’s trusting nature, not mental

incapacity. This case was borne from and sustained by the suspected undue influence of Barnard

over Appellant, mainly because of their 30-year age difference, and the fact Petitioners were able

to manipulate Appellant on a land transaction, sought to declare him incompetent so they could

assume control over his finances, then completely abandoned their petition and deserted the

proceedings they instigated.

       By the end of this litigation and the court’s final judgments, it was Barnard, Appellant’s

wife, who was appointed by the court as sole conservator. Appellant rejected Daughter as a

candidate for his conservatorship in favor of Barnard, his wife, a choice which the court

respected and honored. The court found Appellant to be mentally fit with regard to all other

matters of finance and business, no matter how sophisticated or complex they may be, yet unfit

with regard to one category of his belongings, real property. However, the testimony of both

Hamlin and Dr. Harden weigh heavily in favor of Appellant’s mental fitness in this regard.

       The probate court’s judgments of December 23, 2014 and March 6, 2015 are against the

weight of the evidence. The record is devoid of clear and convincing evidence to support the

probate court’s finding Appellant is partially disabled and in need of a conservatorship with

regard to his real property. For these reasons, Appellant’s point on appeal is granted.




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                                         Conclusion
                                         C

        The
        T probate court’s
                  c       judgm
                              ments are rev
                                          versed.




                                                    SHE
                                                      ERRI B. SUL
                                                                LLIVAN, P.J.

Kurt S. Odenwald,
        O           J.., and
Lisa P. Page,
        P     J., conccur.




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