Bardwell v. Bardwell


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Docket Number: 2001-CA-01951-SCT

Supreme Court: Opinion Link
Opinion Date: 07-17-2003
Opinion Author: Carlson, J.
Holding: Affirmed

Additional Case Information: Topic: Wills & estates - Conservatorship - Recusal of judge - Conservator fees - Section 93-13-35 - Section 93-13-38 - Section 93-13-33 - UCCR 6.11
Judge(s) Concurring: Pittman, C.J., McRae and Smith, P.JJ., Waller, Cobb, Diaz and Graves, JJ.
Dissenting Author : Easley, J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - WILLS, TRUSTS AND ESTATES

Trial Court: Date of Trial Judgment: 11-02-2001
Appealed from: Amite County Chancery Court
Judge: W. Hollis McGehee, II
Disposition: Denied the Appellant's motion to recuse, disallowed conservator's fees, and directed partial repayment of the same.
Case Number: 2000-092

  Party Name: Attorney Name:  
Appellant: In the Matter of the Conservatorship of Mary Caroline Lambert Bardwell, an Incapacitated Person: Michael Randall Bardwell




WAYNE DOWDY DONALD EDWIN WALSH



 

Appellee: Mary Caroline Lambert Bardwell T. MACK BRABHAM  

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Topic: Wills & estates - Conservatorship - Recusal of judge - Conservator fees - Section 93-13-35 - Section 93-13-38 - Section 93-13-33 - UCCR 6.11

Summary of the Facts: Michael Bardwell, the stepson of Mary Bardwell, petitioned the chancery court to be appointed as conservator of the person and estate of Mrs. Bardwell. The chancellor appointed Michael to serve as the conservator and required him to perform an inventory of real and personal property owned by Mrs. Bardwell and file this inventory with the court within sixty days. Michael filed in the conservatorship cause a petition to enter into a timber management contract with Timber and Wildlife Management, Inc. in order to preserve the assets of Mrs. Bardwell’s estate. He also filed a Petition for Appointment of a Successor Trustee in a separate cause requesting the court to appoint him as the successor trustee for the Mary Lambert Bardwell Living Trust, which was apparently granted. He later petitioned the court to make monetary gifts of $10,000 to himself, his three children, and Leslie Lambert, the nephew of Mrs. Bardwell, but the petition was denied. The Forest Management Plan was filed with the chancery court, and the chancellor entered a decree authorizing the Plan and authorizing the conservator to pay such expenses and fees that have accrued. Lester Lambert, Jr., as next friend of Mrs. Bardwell, filed a Petition to Set Aside Conservator, Appoint New Conservator, Provide an Accounting, and Issuance of a TRO or a Restraining Order, alleging that Michael was not acting in the best interest of Mrs. Bardwell. The chancellor entered an agreed TRO directing Michael to “cease and desist” from the cutting of timber on Mrs. Bardwell’s property. Michael filed an inventory reflecting estate assets. The chancellor entered an agreed order directing Michael to go forward with the bonding process; to not expend any conservatorship monies other than that necessary to appropriately attend to Mrs. Bardwell’s personal and medical needs; to give Mrs. Bardwell a key to her home; and, to not remove, damage or destroy anything on the property. The chancellor entered an order appointing attorney Joseph Stinson as Guardian Ad Litem of Mrs. Bardwell and directed Stinson to conduct an investigation. The chancellor also appointed Michael Faust, a certified public accountant, to investigate all financial matters of the conservatorship estate. Faust filed a report finding that for the period of May 22, 2000 – to February 9, 2001, expenditures exceeded revenue by $41,565.59. Stinson filed a report recommending that Michael should be removed as conservator and be required to file an inventory and a final accounting as well as justify the conservator’s fee of $27,000 and that the conservatorship process should be begun anew with the appointment of a new conservator. The chancellor directed Michael to return monies representing unauthorized expenditures from estate assets; to retrieve from the timber consultant and deposit into the conservatorship account any monies held by the consultant and due the estate; and, to re-evaluate and document the $27,000 claim for conservator’s fees. He also entered a show cause order directing Michael to show cause as to why he should not be removed as conservator for Mrs. Bardwell. Mrs. Bardwell, Michael Faust, and Martha Powell filed a petition, in which the Guardian Ad Litem also joined, requesting the court to appoint Faust as the conservator of the estate of Mrs. Bardwell and Powell as the conservator of the person of Mrs. Bardwell. Michael chose to withdraw as the conservator of the person and estate of Mrs. Bardwell. The chancellor found that Michael was entitled to a fee of $4,385.55, as opposed to the $27,000 previously paid to him and ordered a total of $42,426.95 to be repaid by Michael at 8 percent interest which included additional monies he had paid himself. Michael appeals.

Summary of Opinion Analysis: Issue 1: Recusal of judge Michael argues that the chancellor had become sufficiently involved in the case to warrant recusal because the chancellor confirmed the appointment of conservator, authorized him to enter into a timber management contract, authorized the payment of expenses of the conservatorship, and authorized the $27,000 conservator's fee. A judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality. In this case, there is no real or perceived reason for the chancellor to recuse himself. If “substantial involvement” in a case were legitimate grounds for recusal, a circuit judge or county judge with five indictments on the same defendant would have to get four other judges involved in presiding over the remaining cases because of “substantial involvement” with the criminal defendant in the first case. Issue 2: Conservator fees Michael argues that the court erred in finding his fees were unreasonable. There is nothing in the record showing that Michael’s actions comported with the provisions of sections 93-13-35 and 93-13-38, which require the court to approve expenditures. Nor was the petition accompanied by proof of the assets in the conservatorship and the inventory was not filed until two months later. This filing of inventory was beyond the 60-day deadline ordered by the chancellor and beyond the three-month deadline mandate of section 93-13-33. In addition, Michael violated the provisions of UCCR 6.11 in not properly documenting via an appropriately filed petition his justification for receiving a $27,000 conservator’s fee. Therefore, the order of the chancellor awarding a conservator’s fee in the amount of $4,385.55 and requiring repayment to the estate for the difference was not error.


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