                                             In the
                          Missouri Court of Appeals
                                    Western District

                                                  
 IN THE MATTER OF                                 
 VIRGIL D. WILLIAMS,                                 WD81613 and
                                                      WD81701
                         Respondent,              
                                                     OPINION FILED:
 JANET ROSENAUER,                                 
 ANDREW COUNTY PUBLIC                                April 16, 2019
 ADMINISTRATOR, AS HIS                            
 GUARDIAN AND CONSERVATOR,                        
                                                  
                         Respondent,              
                                                  
 v.                                               
                                                  
 BETTY LOU WILLIAMS,                              
                                                  
                         Appellant.               


                 Appeal from the Circuit Court of Andrew County, Missouri
                        The Honorable David Lynn Bolander, Judge

                                 Before Division Four:
  Karen King Mitchell, Chief Judge Presiding, Alok Ahuja, and Thomas N. Chapman, JJ.


       Betty Williams appeals from the judgment of the probate division of the Circuit Court of

Andrew County denying her motion seeking to remove the public administrator as guardian and

conservator for her husband, Virgil Williams, and seeking to appoint herself and her daughter as

successor co-guardians and co-conservators. Betty Williams also appeals from the circuit court’s

judgment allowing the public administrator to collect her attorneys’ fees from the estate of Virgil

Williams. We affirm the circuit court’s judgments.
                                              Facts & Procedure

         In November of 2015, the Circuit Court of Andrew County declared Virgil Williams

(Virgil)1 totally incapacitated and disabled as a result of Alzheimer’s-related dementia, alcohol

abuse, and poor short-term memory. At that time, the circuit court had before it competing

petitions for the appointment of a guardian and conservator: one filed by Virgil’s wife, Betty

Williams (Betty); one filed by Virgil’s son, Ricky Williams (Ricky), and daughter-in-law, Linda

Williams (Linda); and one filed by Virgil’s other son, Jeffrey Williams (Jeff). Betty requested

that the public administrator be appointed to serve as Virgil’s guardian and conservator; Jeff

requested that he be appointed to serve in that role; and Ricky and Linda petitioned to be

appointed as co-guardians and conservators. After hearing the evidence, the circuit court

appointed Ricky and Linda to serve as co-guardians and conservators for Virgil.

         In January of 2016, Ricky died. Thereafter, while Linda served as his sole guardian and

conservator, Virgil was placed in Oak Pointe of Kearney Senior Living skilled nursing facility.

Virgil’s daughter, Kim Bauman (Bauman), then petitioned the circuit court for Linda’s removal

and filed an application to be appointed as his guardian and conservator. While Bauman was not

appointed, Virgil’s family members arrived at a compromise wherein (1) Virgil would be moved

to the Shady Lawn nursing facility in Savannah, Missouri; (2) Linda would be removed from her

role as his guardian and conservator; and (3) the public administrator would be appointed to

serve as his guardian and conservator.




          1
            Because many of the people involved in this case share the same surname, we refer to those individuals
by their first names. We do so only for ease of reading and to facilitate an understanding of the issues. No
disrespect is intended to any person.


                                                         2
       In September of 2016, Linda was removed and the public administrator, Janet Rosenauer

(Rosenauer), was appointed as Virgil’s successor guardian and conservator. In September of

2017, Betty filed a motion in the circuit court alleging, among other things, that Rosenauer had

placed unjust limitations on her and Bauman’s visitation with Virgil and prevented her from

obtaining Virgil’s medical information or participating in his medical decision making. The

motion requested that Rosenauer be removed as Virgil’s guardian and that Betty and Bauman be

appointed as co-guardians. On the same day, Betty filed a separate motion to terminate

Rosenauer as Virgil’s conservator, alleging as the basis for this motion that Rosenauer had

mismanaged and failed to protect and preserve Virgil’s funds and assets. This motion also

requested that Betty and Bauman be appointed as co-conservators.

       A trial was held on Betty’s motions in November of 2017 and January of 2018. Evidence

was provided by Virgil’s children and children-in-law; a family friend of Virgil and Betty; Shady

Lawn’s medical staff; Rosenauer; and Virgil’s guardian ad litem, John Brage. Bauman testified

that Rosenauer had limited the number of visits allowed for Virgil’s family members and

required visits to be supervised; limited the family to one outing with Virgil per family member

per month; limited each family member to one ten-minute phone call per day; and ordered the

family not to take Virgil to visit his home.

       Letters written by Rosenauer were introduced in support of Bauman’s testimony. In her

letters, Rosenauer explained that Virgil’s dementia prevented him from understanding or

handling problems and complaints brought to him by his family members. She further explained

that overstimulation caused Virgil to become combative and made him try to escape from the

nursing home. Rosenauer urged the family to maintain a positive attitude in Virgil’s company,


                                                3
not to complain about other family members, not to complain about Shady Lawn, and not to tell

Virgil that he would be returning to his home. She warned that she would “not tolerate people

upsetting Virgil.”

       Rosenauer elicited testimony from Virgil’s children and children-in-law regarding a

history of dissension among the family members that made the appointment of the public

administrator necessary. Linda testified that, following Ricky’s death, Betty told Linda that she

was not a part of the family and then severed ties with Linda as well as Linda’s children and

grandchildren. When Linda would not agree to allow Bauman to serve as co-guardian and

conservator, Bauman became irate and had to be restrained by Betty. Betty’s sale of the family

farm to Bauman’s children in 2013, rather than to one of Betty’s sons who had expressed interest

in purchasing it, created hard feelings among the family and contributed to their estrangement.

       In his trial testimony, Virgil’s guardian ad litem noted that Betty needed assistance with

her own finances, and recommended that Rosenauer continue to serve as Virgil’s guardian and

conservator. He did not believe Bauman should serve in that role, as he had “concern about the

dynamics between the siblings creating problems down the road….”

       At the conclusion of the trial, the circuit court determined that there was insufficient

evidence to remove Rosenauer from her position as Virgil’s guardian and conservator. The

circuit court further found that Rosenauer had incurred attorneys’ fees during the course of the

litigation involving Betty and allowed these fees to be taxed against Virgil’s estate.

       Betty timely appeals from the circuit court’s judgments denying her motion for

Rosenauer’s removal and allowing Rosenauer’s attorneys’ fees to be paid out of Virgil’s funds.




                                                 4
                                                      Discussion
         Betty makes three points on appeal. She argues (1) that the circuit court erred, because

its judgment allowing Rosenauer to continue as Virgil’s guardian and conservator was not

supported by substantial evidence and was against the weight of the evidence, because the

evidence demonstrated that Betty and Bauman were competent to serve as Virgil’s co-guardians

and co-conservators, and that Rosenauer’s continued service in that capacity therefore exceeded

her statutory authority as public administrator; (2) that the circuit court’s judgment declining to

remove Rosenauer as Virgil’s guardian and conservator was against the weight of the evidence in

that Rosenauer had failed to act in Virgil’s best interests; and (3) that the circuit court misapplied

the law in allowing Rosenauer’s attorneys’ fees to be taxed against Virgil’s estate. Finding no

error, we affirm.2


         2
           In her brief, Rosenauer argues that Betty’s motions to remove Rosenauer and to appoint herself and
Bauman as successor co-guardians and conservators were not compliant with §§ 475.060 and 475.061. Specifically,
Rosenauer argues that the motions did not contain information regarding “the identity, location and estimated values
of the incapacitated person’s property and consents of those who are willing to serve.”

         In In re Dugan, 309 S.W.2d 145 (Mo. App. 1957) (relied upon by Rosenauer), the Court addressed an
application for guardianship that was “so lacking in compliance with section 475.060 as to amount to a failure to
give the court jurisdiction.” Id. at 449. However, the Court was careful to note that it did not “intend to hold that
every failure to dot an i or cross a t would necessarily be fatal to such an application,” but only that the application
should “present such sufficient facts as would permit the court to determine its jurisdiction to proceed….” Id.

          Betty’s motions not only sought her and her daughter’s appointment, they also sought Rosenauer’s
removal. Motions for removal of a guardian or conservator are not governed by §§ 475.060 and 475.061. Thus,
even were we to conclude that Betty’s motions were “so lacking in compliance with section 475.060 as to amount to
a failure to give the court jurisdiction,” a finding we do not make, this would still not dispose of the issue of whether
Rosenauer should have been removed from her role as Virgil’s guardian and conservator. Clearly the circuit court
had jurisdiction to consider that request.

          Furthermore, the deficiencies Rosenauer complains about did not necessarily deprive the circuit court of
authority to consider the applications of Betty and Bauman for appointment as Virgil’s co-guardians and co-
conservators. The annual settlement filed by Rosenauer prior to trial provided the circuit court with a detailed
accounting of Virgil’s estate. The motions filed by Betty together with the trial testimony provided by Bauman
provided the circuit court with evidence of their willingness to serve as his guardians and conservators. Whether the
circuit court had authority to consider Betty and Bauman’s applications for appointment remains less clear, but, in
light of our disposition of the other arguments, is something we need not address.


                                                            5
       “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.’” In re

Estate of Schooler, 204 S.W.3d 338, 342 (Mo. App. W.D. 2006) (quoting Murphy, 536 S.W.2d

at 32). “Substantial evidence is evidence that, if believed, has some probative force on each fact

that is necessary to sustain the circuit court's judgment.” Ivie v. Smith, 439 S.W.3d 189, 199

(Mo. banc 2014). “The against-the-weight-of-the-evidence standard serves only as a check on a

circuit court's potential abuse of power in weighing the evidence, and an appellate court will

reverse only in rare cases, when it has a firm belief that the decree or judgment is wrong.” Id. at

206.

       In determining whether the judgment is supported by substantial competent evidence,

“we view the evidence and reasonable inferences from the evidence in the light most favorable to

the judgment, disregard all evidence and inferences contrary to the judgment, and defer to the

trial court's credibility determinations.” Estate of Briggs, 449 S.W.3d 421, 425 (Mo. App. S.D.

2014). “A claim that the trial court erroneously declared or applied the law is reviewed de

novo.” Id.

       In her first point, Betty argues that the judgment allowing Rosenauer to continue as

Virgil’s guardian and conservator was not supported by substantial evidence and was against the




                                                   6
weight of the evidence,3 because Betty and her daughter were competent to serve as Virgil’s

guardian and conservator, and because Rosenauer’s continued service in that capacity therefore

exceeded her authority as public administrator.4 We note that the public administrator “is a

public officer and must be presumed to have acted correctly and within the purview of [her]

statutory authority.” Vermillion v. Le Clare, 89 Mo. App. 55, 61 (Mo. App. 1901).

         Betty concedes that Rosenauer’s appointment was necessary in 2016 in order to facilitate

Virgil’s transfer from Kearney to Savannah; but argues that Rosenauer’s continued appointment

is now unnecessary because Virgil no longer drinks alcohol (making it easier for his family to

attend to his needs) and because he has been successfully relocated to a nursing facility closer to

Betty’s and Bauman’s homes. Betty argues that (if the guardianship and conservatorship were to

continue) she and Bauman would be “competent” to serve, making the service of the Public

Administrator unnecessary and beyond the scope of her duties; and that either Betty or Bauman,

or both of them, should have been named as Virgil’s successor guardian and conservator.




         3
            “[A] claim that the judgment is against the weight of the evidence presupposes that there is sufficient
evidence to support the judgment.” Ivie v. Smith, 439 S.W.3d 189, 205 (Mo. banc 2014) (quoting In re J.A.R., 426
S.W.3d 624, 630 (Mo. banc 2014). Furthermore, a “substantial-evidence challenge…and an against-the-weight-of-
the-evidence challenge…are distinct claims.” Id. at 199 n.11. To be preserved for appellate review, they must be
set forth in separate points relied on. Id. We review Betty’s point ex gratia.
         4
           Point I of Betty’s brief states as follows: “The trial court erred in entering judgment continuing the Public
Administrator as the Respondent’s Guardian and Conservator, instead of appointing the Respondent’s wife, the
Appellant herein, or his daughter, because the substantial and competent evidence, and the weight of the evidence,
demonstrated that the Respondent’s wife and daughter were ‘competent to take charge of such estate, or to act as
guardian and conservator’ and to ‘qualify’ for such roles, to the end that the Public Administrator’s continued
appointment was beyond the scope of the [sic] her duty and authority as proscribed [sic] by Section 473.743
R.S.Mo.” This point misstates the standard of review, is multifarious, and is difficult to discern. In her Table of
Contents of her brief, Betty summarizes her Point I. Though still multifarious, this summary more accurately states
the standard of review, and more clearly states her argument, as follows: “The judgment continuing the Public
Administrator as Guardian and Conservator is not supported by substantial and competent evidence and is against
the weight of the evidence as her appointment is not necessary under Section 473.743 R.S.Mo.”


                                                           7
       In support, Betty cites § 473.730, which provides the qualifications of a public

administrator to take office, and states nothing with respect to whether and when a public

administrator may be appointed as guardian or conservator. Since there has been no challenge to

Rosenauer’s status as the duly elected public administrator, the application of § 473.730 does not

support Betty’s challenge to Rosenauer’s appointment as Virgil’s guardian and conservator.

       Betty also cites § 473.743,5 which provides, in pertinent part, as follows:

       It shall be the duty of the public administrator to take into his or her charge and
       custody the estates of all deceased persons, and the person and estates of all
       minors, and the estates or person and estate of all incapacitated persons in his or
       her county, in the following cases:
       ***
       (8) The estates or person and estate of all disabled or incapacitated persons in his
       or her county who have no legal guardian or conservator, and no one competent
       to take charge of such estate, or to act as such guardian or conservator, can be
       found, or is known to the court having jurisdiction, who will qualify….

(Emphasis added).

       Betty cites no precedent in support of her position that §§ 473.730 and 473.743 set the

standard to determine whether and when to remove the public administrator who had been

appointed guardian and conservator and substitute a family member as successor guardian and

conservator of an incompetent adult. In fact, case law indicates that, although § 473.743

empowers the public administrator to serve where there is no other guardian or conservator and

“no one competent to take charge of the estate or act as guardian will qualify,” this language

does not state a statutory preference for the appointment of family members. Roots v. Reid, 555

S.W.2d 54, 56-57 (Mo. App. 1977) (indicating that § 473.743 did not provide a statutory



       5
           Statutory references are to RSMo 2016 unless otherwise indicated.



                                                         8
preference for appointment of family members, and that at that time, such preference was based

on common law).6

         While § 475.050 states a preference for relatives over certain unrelated third parties, this

preference applies only when “a court is faced with original applications for appointment filed

by a close adult relative and some other party….” In re Estate of Davis, 758 S.W.2d 461, 464

(Mo. App. W.D. 1988). “Once a guardian and conservator is appointed and has given bond,”

this preference disappears, “and a removal on grounds that are not provided for by statute is

unauthorized.” Id; see also Oliva v. Oliva, 113 S.W.3d 269, 273 (Mo. App. W.D. 2003) (when

reviewing a trial court’s decision whether to remove a guardian and/or conservator, “the question

for [the appellate court] is whether th[e] record supports a finding by the Court ‘that the guardian

or conservator is not discharging his duties and responsibilities as required by this code, or is not

acting in the best interests of the ward of [sic] protectee.’”) (quoting § 475.082.5).

         Rosenauer did not exceed her duties enumerated under §§ 473.743 and 473.730; and

those sections do not provide a basis for her removal and the substitution of family members as

Virgil’s guardian and conservator. Point I is denied.

         In her second point, Betty argues that the judgment of the circuit declining to remove

Rosenauer was against the weight of the evidence, because she took actions that were not in the

best interests of Virgil, in that she failed to appropriately manage some of his assets, and she


         6
           Roots, decided in 1977, examined §§ 473.743 and 475.055, and found that there was no statutory basis for
the preference of appointment of family members as guardians and conservators but that there was common law
precedent for the appointment of relatives as guardians of minors, and extended this preference to the appointment
of guardians and conservators for adults. Roots, 555 S.W.2d at 57. Section 475.050 was subsequently enacted to
provide “the hierarchy for the trial court to follow in appointing a guardian or conservator.” In re Estate of Korman,
945 S.W.2d 10, 12 (Mo. App. E.D. 1997). Specifically § 475.050.1 affords some measure of preferential treatment
to the incapacitated person’s close adult relatives when the circuit court considers whom to appoint to serve as his
guardian.


                                                          9
limited interaction between him and his family that caused his residential placement to be more

restrictive than necessary. Section 475.082.5 allows the circuit court to remove a guardian or

conservator upon finding that he or she “is not discharging his or her duties and responsibilities

as required by this code or is not acting in the best interests of the ward or protectee….”7

        First, Betty complains about Rosenauer’s handling of certain assets. Virgil (who is a

musician) asked Jeff to return to Virgil one of Virgil’s guitars (valued between $3,000 and

$5,000). Jeff believed that his sister, Bauman, had pressured Virgil to demand the guitar’s return

and reported the incident to Rosenauer. Rosenauer instructed Jeff to deliver the guitar to her.

Rosenauer kept the guitar for some time, and then returned it to Jeff’s possession. At trial,

Rosenauer acknowledged that although Jeff had possession of the guitar, it remained the property

of a trust owned by Virgil and Betty. No evidence has been presented to suggest that Jeff was

authorized to dispose of the guitar or otherwise convert property of the estate; and no harm to

Virgil or the estate has been shown.

        Betty also argues that Rosenauer failed to act in Virgil’s best interest by being dilatory in

her efforts to change the listed beneficiaries on Virgil’s life insurance policy. 8 Rosenauer

(appointed on September 1, 2016) testified at trial that she was made aware of the problem with


        7
          Additionally, § 475.110.1 provides for the removal of a guardian or conservator “on the same grounds as
is provided in section 473.140….” Section 473.140 provides as follows:

        If any [guardian or conservator] becomes mentally incapacitated or is convicted of a felony or
        other infamous crime, or becomes an habitual drunkard, or in any manner incapable or unsuitable
        to execute the trust reposed in him, or fails to discharge his official duties, or wastes or
        mismanages the estate, or acts so as to endanger any co-representative, or fails to answer any
        citation and attachment to make settlement, the court, upon its own motion, or upon complaint in
        writing made by any person interested supported by affidavit, after notice to [the guardian or
        conservator] …, shall hear the matter and may revoke the letters granted.
        8
          Ricky and Linda Williams, Rosenauer’s predecessor guardians and conservators, had designated
themselves as the policy’s beneficiaries.


                                                        10
the policy in December of 2016. In her Motion to Determine Property Interests filed in May of

2017, Rosenauer requested that the circuit court enter an order changing the beneficiary of any

life insurance policy held by Virgil, naming the estate as the beneficiary, so that the proceeds

could be used to pay his final expenses with the remaining balance to go to his wife, Betty.9 At

the end of the first day of trial (November 13, 2017) the parties agreed that the change in

beneficiary should be ordered, and a week later the circuit court entered an order designating the

“Estate of Virgil D. Williams” as the beneficiary of his life insurance policy. Therefore it

appears that Rosenauer did seek to change the beneficiary, that this was completed, and that the

estate suffered no prejudice by any purported delay in doing so.

         Finally, Betty argues that the limitations Rosenauer placed on the family’s ability to visit

with Virgil were overly restrictive.10 As Virgil’s guardian, Rosenauer is “accorded substantial

discretion in making decisions relating to [Virgil’s] daily life and routine.” Estate of Posey v.

Bergin, 299 S.W.3d 6, 23 (Mo. App. E.D. 2009). Restrictions imposed by a guardian on a

ward’s visitation and communication privileges with friends and family members may (even

though they displease the ward) be in the ward’s best interests, particularly where the guardian

had “considered a great deal of [the ward’s] history” and the restrictions reflect the guardian’s

“obvious concerns for his health and well being….” Id. The circuit court does not err in




         The circuit court entered an order on Rosenauer’s motion on October 19, 2017, but did not address
         9

Rosenauer’s request concerning Virgil’s life insurance beneficiary designation.
         10
            While not cited in Betty’s brief, § 475.120.3(1) requires the guardian of an incapacitated person to
“[a]ssure that [he] resides in the best and least restrictive setting reasonably available.”



                                                          11
declining to “interject itself in the details of the day-to-day decisions made by [the guardian]….”

Id.11

         Rosenauer’s letters to Virgil’s family members reflect her concern that family members

were complaining to Virgil about the care he was receiving at the nursing home, and that they

were encouraging Virgil to pack up his belongings and implying that he would be going home

soon. Rosenauer continuously exhorted the family to remain positive while visiting with Virgil

and to refrain from complaining about other family members as Virgil’s weakened mental

condition prevented him from understanding the family’s problems. Rosenauer was particularly

concerned about the family’s habit of taking Virgil to visit his old home, which she believed

caused him to become confused as to why he could not stay there permanently or how he ended

up in a nursing home. The restrictions imposed by Rosenauer in the case at bar were similar to

those imposed in Posey, and appear similarly justified. The evidence presented at trial indicated

that the decisions Rosenauer made regarding Virgil’s telephone and visitation privileges were

calculated to serve his best interests by keeping him content with his living arrangements. The


         11
             In Posey, the ward’s daughter (Daughter/guardian) was appointed as his guardian and conservator “as a
result of the effects of [the ward’s] alcohol dependence and abuse on his physical and mental condition.” Posey, 299
S.W.3d at 8. The ward had been placed in a residential facility due to his incapacity. Id. at 9. While there,
Daughter/guardian placed restrictions on his mailing privileges, compiled a list of persons from whom the ward
could receive phone calls and to whom the ward was permitted to make phone calls, and also restricted the ward’s
visitation privileges. Id. The ward filed a motion to compel visitation privileges and to remove Daughter/guardian.
Id. at 8. At the trial Daughter/guardian testified that when the ward had unmonitored contact with his other daughter
(Daughter/guardian’s sister) and another person described as his “drinking buddy,” he became dissatisfied with his
living conditions at the residential facility, became angry with Daughter/guardian, and told her that he wanted to go
home. Id. at 9. The Posey Court indicated that some of the restrictions displeased the ward, but found that the
restrictions placed upon him by Daughter/guardian had “been made with his best interest in mind.” Id. at 23. It
noted that as the ward’s guardian, Daughter/guardian had been invested with “substantial discretion in making
decisions relating to [the ward’s] daily life and routine.” Id. The Posey court observed that Daughter/guardian had
“considered a great deal of [the ward’s] history,” and that the restrictions demonstrated “her obvious concern for his
health and well being….”Id. It therefore held that the circuit court did not err in declining to “interject itself in the
details of the day-to-day decisions made by” Daughter/guardian. Id.



                                                           12
circuit court did not err when it declined to “interject itself in the details of the day-to-day

decisions made by” Rosenauer. Posey, 299 S.W.3d at 23.

         Furthermore, Virgil’s guardian ad litem (who had served in that capacity in all of the

contested proceedings) indicated that he had not observed any mismanagement by Rosenauer.

He was not aware of any violations of her responsibility as guardian and conservator, and

recommended that she continue to serve in that capacity.

         The circuit court did not abuse its discretion by denying Betty’s motion to remove the

public administrator as Virgil’s guardian and conservator. Because we are not firmly convinced

that the judgment of the circuit court declining to remove Rosenauer was wrong, the judgment

was not against the weight of the evidence. Point II is denied.12

         In her third point, Betty argues that the circuit court erred in allowing Rosenauer to

collect $36,600.58 in attorneys’ fees from Virgil’s estate.13 At the hearing on Rosenauer’s

attorneys’ fees, Betty specifically noted that she was “not arguing that the fee of the hourly rate

of $200 per hour or even the combined hourly rate of $400 per hour [was] necessarily or

inherently unreasonable.” On appeal, Betty does not challenge the reasonableness of the fees in

light of the services rendered. Therefore the only issues before this court regarding the award of

attorneys’ fees are whether the amount of the fees was disproportionate to the size of the estate




         12
           Betty also argues that Rosenauer failed to act in Virgil’s best interest by accumulating attorneys’ fees in
the amount of $36,600.58 over the course of this litigation, which have been taxed against Virgil’s estate. Because
this argument is essentially duplicative of her third point, we defer addressing it until the analysis under Point III.
         13
            Prior to the entry of the circuit court’s Judgement for Fees and Costs (from which Betty appeals), the
circuit court had entered an order allowing Rosenauer’s attorneys’ fees to be paid from Virgil’s estate in the amount
of $7,345.58. Thus, the attorneys’ fees that remained to be collected when the judgment (from which Betty appeals)
was entered amounted to $29,255.00.


                                                           13
(allegedly totaling $40,890.97), and whether the fees were unnecessary in light of the fact that a

guardian ad litem had been appointed to represent Virgil.

       Under § 475.130.1, a conservator is required to “protect, preserve and manage the

[protectee’s] estate…us[ing] the degree of care, skill and prudence which an ordinarily prudent

person uses in managing the property of, and conducting transactions on behalf of, others.”

Section 475.265 provides that the guardian and conservator may be compensated “for necessary

expenses in the administration of his trust, including reasonable attorney fees if the employment

of an attorney for the particular purpose is necessary.” (Emphasis added).

               Legal services are not infrequently necessary for the protection of the
       assets of an estate in the hands of an administrator or guardian, and when this is
       the case it has been repeatedly held in this state that such services are for the
       benefit of the estate, and that the attorney who rendered them may look to the
       trustee for his fee, or may present his claim to the probate court, and that that
       court has jurisdiction to allow the fee as a charge directly against the assets of the
       estate as expense of administration.

Grove v. Reynolds, 71 S.W. 1103, 1104 (Mo. App. 1903). As a corollary to this rule, attorneys’

fees may not be collected from the estate “unless it is made to appear affirmatively that the

services were necessary, or were of benefit to the estate.” Id. In determining the amount of

attorneys’ fees to which the guardian or conservator is entitled, the circuit court is to consider

“‘all circumstances of the guardianship, including the size of the estate, the productiveness of the

estate, the disbursements from the estate, the nature and difficulty of the services performed, and

what is a customary charge for similar services in the community.’” Houston v. Zaner, 683

S.W.2d 277, 280 (Mo. App. W.D. 1984) (quoting 5 Maus, Probate Law and Practice, § 1969, pp.

319–320).




                                                  14
       In In re Estate of Walker, 16 S.W.3d 672, 676-678 (Mo. App. E.D. 2000), a conservator

who was an attorney challenged a trial court’s judgement which did not allow attorney fee rates

for non-legal administrative services. In affirming the trial court’s award the Walker Court

indicated:

              Section 475.265 commits the determination of a conservator's
       compensation to the court. The allowance of fees falls within the court's
       administrative authority and is within the court's discretion….

              Section 475.265 RSMo (1994) provides that the court shall allow such
       compensation for services to a conservator as it shall deem just and reasonable.
       This compensation is to be based upon [the factors set forth in Houston]….

               The court, however, has the ultimate duty to determine under the
       individual facts of each case what a reasonable and just fee is in light of all of
       these factors. It, too, is an expert on the nature and value of attorney's fees….
       “[C]ourts are themselves experts on the question of attorneys' fees and the judge
       who personally tries a case and is acquainted with all the issues involved is in a
       position to fix the amount of attorneys' fees without the aid of evidence.”

(quoting Jafarian–Kerman v. Jafarian–Kerman, 424 S.W.2d 333, 340 (Mo. App. 1967)).

       “[W]e review the court's award of compensation under [§ 475.265] solely for abuse of

discretion.” Id. at 676. “The trial court abuses its discretion when its ‘decision was against the

logic of the circumstances and so arbitrary and unreasonable as to shock one's sense of justice.’”

Terpstra v. State, 565 S.W.3d 229, 249 (Mo. App. W.D. 2019) (quoting Hoeper v. Liley, 527

S.W.3d 151, 158 (Mo. App. W.D. 2017)) (some internal quotation marks omitted). “‘We will

not reverse [the award of attorneys’ fees] unless we find that the amount was arbitrarily arrived

at or is so unreasonable as to indicate indifference and a lack of proper judicial consideration.’”

Id. at 249-50 (quoting Ferguson v. Curators of Lincoln Univ., 498 S.W.3d 481, 497 (Mo. App.

W.D. 2016)).



                                                 15
       While the circuit court’s judgment regarding attorneys’ fees does not refer specifically to

evidence bearing upon the factors set forth in Houston, Betty did not make a request pursuant to

Rule 73.01 for specific findings of fact or conclusions of law. “[U]nless there is such a request

and entry, the probate court is presumed to have made its findings in accordance with the decree

entered and its judgment will be affirmed under any reasonable theory supported by the

evidence.” In re Estate of Newman, 58 S.W.3d 640, 645 (Mo. App. W.D. 2001) (quoting Estate

of Vickers, 35 S.W.3d 851, 852 (Mo. App. S.D. 2001)). It is clear that the circuit court had

before it evidence that allowed it to assess the factors set out in Houston. Prior to trial,

Rosenauer filed with the circuit court her annual settlement of Virgil’s estate for the period

running from September 1, 2016, to September 1, 2017. The settlement provided information

concerning the size and productiveness of Virgil’s estate, including an itemization of receipts and

disbursements for the relevant period. The circuit court also had before it detailed invoices from

Rosenauer’s attorneys, which allowed it to assess the nature and difficulty of the services

performed. After reviewing the time records submitted by Rosenauer’s attorneys, the circuit

court deducted thirty hours which it deemed to be duplicative.

       It is unfortunate that so much of Virgil’s estate has been depleted by the costs of the

present litigation. However, Rosenauer, as Virgil’s guardian, had an affirmative duty to promote

and protect his welfare, as well as his estate. §§ 475.120.3(3), 475.130.1. Since the circuit court

has concluded (and we have affirmed) that there was no basis to remove Rosenauer as Virgil’s

guardian, it would certainly be reasonable to expect Rosenauer to hire counsel to defend against

the motions seeking her ouster. “We presume an award of attorneys’ fees to be correct, and the




                                                  16
complaining party has the burden to prove otherwise.” Hill v. City of St. Louis, 371 S.W.3d 66,

81 (Mo. App. E.D. 2012). Betty has not satisfied this burden.

        We also reject Betty’s contention that Rosenauer should not be permitted to pay her

attorneys’ fees from Virgil’s funds because Virgil was represented by a guardian ad litem in the

proceedings below. Betty discusses the duties of a guardian ad litem and the authority to pay the

guardian ad litem’s attorney’s fees, but cites no authority that a guardian and conservator’s

attorneys’ fees cannot also be paid from the estate, and we therefore consider that proposition

abandoned. State ex rel. Mid-Missouri Limestone, Inc. v. Cty. of Callaway, 962 S.W.2d 438, 441

(Mo. App. W.D. 1998) (“An explanation is required for the absence of citations and if no

authority exists. Thus, a reviewing court is justified in considering a point abandoned if there is

no authority or no explanation as to why authority is not available.”) (internal citation omitted).

We observe ex gratia that the roles of the guardian ad litem and the parties’ attorneys are

distinct. By hiring counsel, Rosenauer was able to more effectively advocate for her retention,

which is an outcome that both Rosenauer and the guardian ad litem believed to be in Virgil’s

best interest.

        The circuit court’s judgment does not “indicate indifference and a lack of proper judicial

consideration.” Terpstra, 565 S.W.3d at 249. We cannot say the circuit court’s award of fees

was against the logic of the circumstances; or that it was so arbitrary and unreasonable as to

shock one's sense of justice. Id. The circuit court did not abuse its discretion in its award of

Rosenauer’s attorneys’ fees. Point III is denied.




                                                 17
                                          Conclusion

       The judgments of the circuit court are affirmed.


                                                    /s/ Thomas N. Chapman
                                                    Thomas N. Chapman, Judge

All concur.




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