CYNTHIA C. HARRIS,                         )
                                           )
                    Appellant,             )
                                           )
      vs.                                  )         Nos. SD35908 & SD35971
                                           )
ALICE DAVIS, as Personal Representative )            FILED: November 4, 2019
 of the Estate of Melvin Harris, Deceased, )
CHASITY L. BOETTCHER,                      )
JANE M. McKNIGHT,                          )
KIMMIE L. HENSON,                          )
SALLY A. CARROLL,                          )
MELVIN L. HARRIS, and                      )
MARY S. KINNARD,                           )
                                           )
                    Respondents.           )

             APPEAL FROM THE CIRCUIT COURT OF PHELPS COUNTY
        Honorable Ronald D. White & Honorable Kenneth G. Clayton, Judges 1
AFFIRMED
          Cynthia Harris appeals a probate judgment and order directing distribution
of estate property over her objections.
          We are to sustain the probate division’s judgment unless it is not supported
by substantial evidence, it is against the weight of the evidence, or it erroneously
declares or applies the law. In re Hoffman, 23 S.W.3d 646, 648 (Mo.App. 2000).




1   Judge Clayton took over the case after Judge White retired in December 2018.
Because the procedural background is complex, we will describe relevant facts and
proceedings in the context of various points raised on appeal. 2

                       Complaints about Appointment
                  of Personal Representative (Points 1 & 2)
                                     Background
       Melvin Harris (“Decedent”) lived on the farm where he was raised and that
was passed down to him from his father. His wife Cynthia (“Wife”) moved out of
the marital home in 2013 after Decedent was diagnosed with brain tumors. Within
months, Decedent required full-time care which his daughter provided until he
died in March 2015.
       In December 2015, Decedent’s sister Anna Mae Edgar filed a § 473.097
small-estate case and timely presented Decedent’s will and codicil which later were
admitted to probate. 3 In February 2016, Wife moved to “convert” that small-estate
case to full administration. Wife also filed surviving-spouse claims against which
Decedent’s heirs asserted the defense of § 474.140 abandonment. See Estate of
Heil v. Heil, 538 S.W.3d 382, 385 (Mo.App. 2018). 4
       In August 2016, the court held an evidentiary hearing on abandonment,
then concluded that it could not convert a small-estate case and denied that motion
without discussing § 474.140. On appeal in Harris I, we found that Wife’s motion




2 This is the parties’ second interlocutory appeal. See Estate of Harris, 529 S.W.3d 31
(Mo.App. 2017)(Harris I). Wife also appealed the judgment in a related civil suit. See
Harris v. Edgar, SD35905, slip op. (Mo.App. S.D. July 19, 2019)(Harris II). We recite
facts and background from those opinions without further attribution.
3 Statutory citations are RSMo as amended through 2015 unless otherwise indicated. No

one sought probate letters within 20 days of Decedent’s death.
4Wife filed a § 474.160 election to take against the will and for exempt-property and
homestead allowances (§§ 474.250, 474.290), against which § 474.140 provides that any
married person who
     abandons his or her spouse without reasonable cause and continues to live
     separate and apart from his or her spouse for one whole year next preceding his
     or her death … is forever barred from his or her inheritance rights, homestead
     allowance, exempt property or any statutory allowances from the estate of his
     or her spouse unless such spouse is voluntarily reconciled to him or her and
     resumes cohabitation with him or her.

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to convert met all requirements for a timely § 473.020 petition; thus we reversed
and remanded to open an estate and appoint an administrator.
       On remand, the probate division ordered full administration and directed
Ms. Edgar, whom Decedent’s will named to serve as personal representative, to
apply for letters within 30 days. Ms. Edgar did so and was appointed to administer
the estate independently which she did until her June 2019 death and replacement
by Alice Davis as substitute administrator.
                                          Point 1
       Wife complains that the probate division lacked authority 5 to appoint Ms.
Edgar because her application for letters was, to quote Point 1, “more than one year
after the death of [Decedent], contrary to Section 473.020, and there is no
exception (equitable or otherwise) to this deadline.”
       We disagree. Harris I construed Wife’s motion to convert as a timely
§ 473.020 petition and remanded for the probate division to open an estate and
appoint an administrator. This compelled the probate division, by statute, to
determine who should be directed to apply for letters (§ 473.020.3, with Ms.
Edgar being that person per § 473.110.1) and issue appropriate orders including,
inter alia:
           An order directing the person found by the court to be
           entitled to the issuance of letters testamentary or of
           administration to apply for and qualify for such letters
           within such time as is allowed by the court, and in default
           of such timely application and qualification, upon application,
           the court shall issue letters of administration to some other
           person found suitable by the court [.]
§ 473.020.3(1)(our emphasis). Contrary to Point 1, these actions did not have to
occur within a year of Decedent’s death given Wife’s timely § 473.020 petition. See
Estate of Givens, 234 S.W.3d 519, 521-25 (Mo.App. 2007); § 473.050.4
(administration allowed any time after timely presentation of will); § 473.050.6 (as
amended 2016)(clarifying, in that situation, that letters can applied for more than


5Point 1 and its argument actually, and incorrectly, allege a lack of jurisdiction. See State
ex rel. Unnerstall v. Berkemeyer, 298 S.W.3d 513, 517-18 (Mo. banc 2009). We have
exercised our discretion to reframe the point so we can consider it.

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a year after decedent’s death). To quote one respected commentator:

             It is a common practice for Missouri probate lawyers to present
             a will in conformity to the requirements of § 473.050 without
             requesting the granting of letters testamentary in situations
             where it does not appear that there will be a probate estate,
             simply to assure the honoring of the testator’s intent expressed
             in his will in the event that probate assets are discovered in the
             second or subsequent years following his death.
Hanna, 4 Mo. Prac., Probate Code Manual § 473.050 (2d ed., Nov. 2018 update).
Point 1 fails.

                                             Point 2
          Point 2 charges that the court should have appointed, not Ms. Edgar, but
the public administrator as Wife’s motion allegedly sought, citing Harris I’s
directive that the probate division “open Decedent’s estate and appoint an
administrator as requested.” 529 S.W.3d at 35 (our emphasis).
          Wife misreads Harris I. Worse, she forgets that her motion prayed the
court to “enter an order directing such persons entitled to administer to apply and
qualify on or before a date certain to be specified by the Court,” which the court did
and § 473.020.3 required. Only “in default thereof” did Wife’s motion ask that the
public administrator be appointed. Point 2 also fails.

               Complaints about Scope of Hearing (Points 3 & 4)
                                          Background
          In September 2018, Ms. Edgar as independent personal representative filed
a § 473.840.2 “final” statement of account and schedule of proposed distribution
and petitioned the court for approval. 6 Wife filed timely objections based on her
surviving-spouse claims. The court set Wife’s objections for hearing on October
31.

6Wife consistently refers to these filings as a “final settlement,” so we will do likewise. The
petition for approval seems superfluous because, per § 473.840.4:
      •   If no one objects to § 473.840.2 filings within 20 days, the personal representative
          “shall” distribute without court action or involvement.
      •   If a timely objection is filed, as Wife did here, “the court shall conduct a hearing on
          such objections and … thereafter determine and order proper distribution and
          make an order discharging the representative.” Id.

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       Decedent’s heirs filed an October 29 response reasserting § 474.140 as a
defense to Wife’s objections and adduced supporting abandonment evidence on
October 31. Witnesses testified that Wife abruptly moved out of the marital home
in April 2013, leaving Decedent without personal possessions except his clothes
and a lawn chair. She bought a home elsewhere, never moved back with Decedent,
never reconciled with him, and never provided him care.
       Wife did not object to any testimony, did not cross-examine any witness,
and offered no rebuttal. Having heard the evidence, the court found § 474.140
abandonment, denied Wife’s surviving-spouse claims, denied her objections to Ms.
Edgar’s final settlement, and ordered distribution in accordance therewith.
                                      Points 3 & 4
       Wife argues that the § 474.140 abandonment issue was not noticed up, so
the court erred (Point 3) and violated Wife’s due-process right to adequate notice
(Point 4) in considering that evidence. Wife’s failure to object to such evidence,
alone, eviscerates both points.
       Wife’s timely objections compelled the court to conduct a hearing thereon,
then “determine and order proper distribution and make an order discharging the
representative.” § 473.840.4. Despite written reassertion of the heirs’ § 474.140
defense (upon which the court previously had heard testimony), Wife’s counsel
voiced no due-process or hearing-scope objection before or during the October 31
hearing; 7 stood mute as the heirs’ attorney explained her plan to call witnesses
regarding Wife’s abandonment; and did not cross-examine those witnesses or
object to anything they said. Their testimony, summarized above, was relevant to
determination of Wife’s objections and the court’s § 473.840.4 duty to determine
and order proper distribution. We deny Points 3 and 4.

              Complaints Relating to Civil Case (Points 5 & 6)
                                      Background
       In July 2016, after Wife filed her motion to convert but before it was denied,

7Wife unsuccessfully sought a continuance for reasons unrelated to Points 3 or 4, a ruling
not challenged on appeal and relevant only insofar as Wife’s failure to raise a due-process
complaint at the first available opportunity justifies our further finding that Point 4 is
unpreserved. Brown v. Brown-Thill, 543 S.W.3d 620, 627 (Mo.App. 2018).

                                            5
Wife sued the personal representative and heirs in circuit court (“Civil Case”),
alleging that Decedent’s nonprobate farm transfer was in fraud of Wife’s marital
rights. The defendants eventually sought and obtained dismissal of that case in
favor of the concurrent probate proceedings.
       Wife appealed and, in July 2019, this court affirmed in Harris II, citing
abatement, “also known as the ‘pending action doctrine,’ [which] holds that where
a claim involves the same subject matter and parties as a previously-filed action so
that the same facts and issues are presented, resolution should occur through the
prior action ….’” Meyer v. Meyer, 21 S.W.3d 886, 889-90 (Mo.App.
2000)(quoting Estate of Holtmeyer v. Piontek, 913 S.W.2d 352, 357
(Mo.App. 1996)).
                                      Point 5
       Point 5, raised in Wife’s initial brief prior to Harris II and contrary to its
holding, charges probate-division error in not abating proceedings in favor of the
Civil Case. Harris II defeats this point and Wife, to her credit, does not argue
otherwise. Point denied.
                                      Point 6
       Finally, Wife claims the probate division erred in approving final settlement
filings that did not list the Civil Case or its subject real estate transferred by
beneficiary deed. Without listing these, Wife argues, the estate was not in proper
condition to be closed.
       Yet Wife does not allege, much less show, how she was prejudiced thereby.
Nor does she challenge the § 474.140 abandonment finding against her or the
court’s ruling that she had no marital rights or claims to assert. Only prejudicial
error is reversible error. Brown, 543 S.W.3d at 632; Estate of Pittman, 16
S.W.3d 639, 642 (Mo.App. 2000). Point denied. Judgment affirmed.

DANIEL E. SCOTT, P.J. – OPINION AUTHOR
JEFFREY W. BATES, C.J. – CONCURS
DON E. BURRELL, J. – CONCURS




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