Opinion
B223116
08-10-2011
Conservatorship of the Person and Estate of PHYLLIS M. TREMAYNE. BARBARA PAYNE, as Conservator, etc., Petitioner and Respondent, v. BONNIE SHEPARD et al., Objectors and Appellants.
Matthew C. Brown for Objectors and Appellants. Orren & Orren, Tyna Thall Orren; Helms & Myers and James R. Helms, Jr., for Petitioner and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. GP12790)
APPEAL from an order of the Superior Court of Los Angeles County, Candace J. Beason, Judge. Affirmed.
Matthew C. Brown for Objectors and Appellants.
Orren & Orren, Tyna Thall Orren; Helms & Myers and James R. Helms, Jr., for Petitioner and Respondent.
Bonnie Shepard and Heather O'Brien (Objectors) appeal from an order approving the final account of Barbara J. Payne, conservator of the estate of Phyllis M. Tremayne, and directing delivery of the property of the estate to the administrators of Tremayne's probate estate in Nevada. Objectors claim the probate court erred in failing to hold an evidentiary hearing and in distributing the assets to the probate estate in Nevada without adequate notice. We affirm.
BACKGROUND
On February 14, 2007, Payne filed a petition for appointment as Tremayne's conservator in Los Angeles Superior Court (Case No. GP012790). The petition stated that Tremayne, Payne's sister, had been living with her ex-husband, David O'Brien, for over 15 years, until his death in January 2007. While Tremayne was attending to his funeral arrangements, she fell, subsequently underwent brain surgery, and was recovering until she suffered a stroke on January 31, 2007. Tremayne was nonresponsive and confined to bed in a nursing home, and a conservator was necessary to provide for her continuing care and to protect and preserve Tremayne's assets. The petition stated that Tremayne was a resident of Los Angeles County, had no children, and "[a] conservator is required to protect and preserve the assets from possible conversion by third parties and to determine the full extent of her assets at this time." The court granted the petition and issued letters of conservatorship on April 6, 2007.
Tremayne died on October 10, 2007. No will was located.
On January 14, 2008, Payne and her daughter Joy DelTiempo filed a petition in district court in Clark County, Nevada, for probate of Tremayne's estate and for their appointment as administrators, listing assets including bank accounts, stock, and a home in Laughlin, Nevada, with a total value of $1,492,496.67. The petition stated that Tremayne was a resident of Nevada.
We grant Payne's request for judicial notice of pleadings and documents in the Nevada and California probate cases (exhibits 2 and 3).
The Nevada court granted the petition on February 1, 2008, and letters issued. The order found the allegations of the petition to be true. The order also stated that Payne and DelTiempo had obtained a bond for $1,043,000, and that no bond was required as long as the funds were kept in an attorney trust blocked account.
Objectors filed a probate petition in Los Angeles County Superior Court almost a year after Tremayne's death, on October 9, 2008 (Case No. GP14079). On the same date, Objectors filed an ex parte petition to be appointed as special administrators, and a creditor's claim for $936,066.94 for two Indy Mac bank accounts and two annuities, for which Objectors claimed to be beneficiaries. The creditor's claim asserted that Payne improperly withdrew the funds during the conservatorship without court authorization. These assets had been delivered to the Nevada probate estate nine months earlier. Objectors were appointed as special administrators of the California probate estate on October 9, 2008, with letters issued on the same date.
Objectors are the nieces of Tremayne's ex-husband, O'Brien.
Tremayne and her ex-husband, O'Brien, were the co-trustees on the bank accounts and the co-beneficiaries on the annuities, and Objectors asserted they were contingent beneficiaries who were to receive the funds upon Tremayne's death.
On December 8, 2008, a citation filed in the conservatorship case required Payne to appear and give legal reason why no account had been filed. Payne responded that she lived in Nevada, where she had fallen and broken her hip in March 2008, and was not released from inpatient rehabilitation until July 2008. She was preparing the first and final account and was unable to travel. In a hearing on January 16, 2009, the court set the account for a hearing on February 27, 2009 (the hearing was later continued to March 20, 2009).
On December 31, 2008, Objectors filed a creditor's claim in the Nevada probate, attaching the California creditor's claim that they had filed in the California probate case asserting their rights to $936,066.94.
The administrators of the Nevada estate notified the Nevada court on March 27, 2009 that they rejected the claim.
Payne filed a "First and Final Account and Report of Conservator" on February 26, 2009, covering the period ending on Tremayne's death on October 10, 2007, and giving the amount of property on hand at the end of the account period as $1,310,333.49. The account noted the commencement of probate proceedings in California and stated: "When an Order for Probate has been entered, and an Administrator appointed, petitioner requests that the residue of the property on hand in the conservatorship estate, after payment of attorney's fees, be distributed to the personal representative of the Estate of Phyllis Tremayne."
On March 2, 2009, the Nevada court removed Payne and DelTiempo as administrators of Tremayne's estate, finding that both had petitioned to resign voluntarily, and that there was good cause to remove Payne "given her advanced years, asserted errors in managing funds, and serious physical injuries that she sustained recently." The Nevada court also found that there was a potential jurisdictional dispute between Nevada and California, and as Tremayne "left a house, her vehicle and all her personal property within Nevada, the continuation of the administration in Nevada will be required." The Nevada court found that new administrators would be required to defend against the Objectors' claims, and appointed as new administrators John Jay Payne and Tom Hedderich, Payne's nephews, and attorney Robert C. Graham. The Nevada court ordered a stay on future distributions until disputed claims (including those of the Objectors) could be resolved, and ordered that all liquid funds of the estate be deposited in a blocked attorney trust account of Graham's Nevada law firm.
At the combined hearing in the conservatorship case and the probate case on March 20, 2009, John Payne and Hedderich requested that they be appointed as the special administrators of the California estate, in the place of Objectors. Objectors' attorney argued that the assets in Nevada needed to be brought back to California, because Tremayne was a California resident (based on the conservatorship petition) and the California court would abuse its discretion if it did not take jurisdiction over the "California assets." The court rejoined, "I don't think that this court has to take jurisdiction over the assets that are in Nevada." Payne's attorney argued that the assets were secured in Nevada, and the accounting of the conservatorship was filed and set for hearing on April 10. Objectors' attorney continued to argue that the funds should be deposited into a blocked account in California. The court appointed John Payne and Hedderich as special administrators with general powers in the California probate. Objectors' attorney requested an "evidentiary hearing on who's actually going to be appointed the general administrator."
Objectors' counsel cited Estate of Glassford (1952) 114 Cal.App.2d 181 for this proposition, but the court disagreed with his interpretation of the case. Estate of Glassford held that sufficient evidence supported the trial court's finding that a decedent who died in California was a resident of New York. (Id. at pp. 186-188.) Objectors cite the case in their opening brief but make no argument regarding its applicability.
A motion for bill quia timet filed in California on March 27, 2009 in the conservatorship case by surety American Contractors Indemnity Company sought a freeze on Payne and DelTiempo's accounts with Wells Fargo Bank. The motion alleged that Payne had written large checks to herself and her family members out of conservatorship funds after Tremayne's death and at a time that Payne was aware of the Objectors' claims, and that Payne had distributed conservatorship funds "to herself and others without [c]ourt authorization." Payne's response stated that the court had already declined the request that the funds be returned from Nevada.
On April 7, 2009, Payne filed a first supplement to the account. An attached declaration from Payne's attorney stated that immediately following Tremayne's fall while she was making funeral arrangements for her ex-husband O'Brien in January 2007, Objectors had entered the house where Tremayne had lived with O'Brien and "spent several days removing all of the personal possessions, check books and financial records of Phyllis Tremayne and of David O'Brien." When Payne conducted discovery, drafts of wills leaving O'Brien's assets to Tremayne were found, but a folder marked "'Wills'" was empty.
On April 9, 2009, Objectors filed their objections to the account in the conservatorship case. Objectors argued that they had standing to object as "interested persons" who would be affected by the accounting, because they had a claim against Tremayne's probate estate and "the conservatorship estate that is the subject of this proceeding holds, or once held, the assets that now belong to the Probate Estate." The Objectors also argued that Payne had improperly removed the funds in the Indy Mac bank accounts and the annuities before Tremayne died, and Payne had distributed over $160,000 of conservatorship funds to herself, her daughter, and other relatives after Tremayne's death.
A supplement filed April 14, 2009 to Payne's response to the motion for bill quia timet stated that the court had relied on Payne's counsel's oral representations "as to the existence and extent of the assets of the conservatorship sequestered in the Nevada probate proceeding," and attached a letter from Graham. The letter listed a total of $1,054,000 in checks received from Payne in February and May 2008 and asserted: "Pursuant to the [Nevada] Probate Court's recent order, the entirety of these funds are blocked and cannot be drawn upon until further orders of the court. There is no attorney discretion on this matter." The letter also stated that there were additional assets in Tremayne's estate, including a house in Laughlin, a vehicle, and utility stock.
At the April 17 hearing in the conservatorship and probate cases, the surety's attorney argued that the blocked account in Nevada operated differently from a blocked account in California. Although the attorney agreed with the court that "we don't have any funds in California," he maintained that the California court should issue an order blocking all conservatorship funds, including Payne's and DelTiempo's accounts "given the wild accusations back and forth between the family members," pending final determination of the accounting. The court asked how much money was in the Nevada account, and Payne's attorney replied that it was approximately $1,045,000. Objectors' attorney joined in the surety's request to block the funds to "safeguard[] this money for the conservatorship estate." The court expressed concern about the checks written by Payne, but although she had read the attorney's letter, the court was unable to resolve "the factual issue as to whether or not those are blocked accounts." The court denied the surety's motion without prejudice, "invit[ing] anything later on that would assist me in making a determination."
Payne filed a motion in the conservatorship case to dismiss the objections and a supplement to the account on May 11, 2009, arguing that Objectors did not have standing in the conservatorship action because they claimed only an interest in the probate estate. Even if the Objectors' claim were legitimate, the accounting showed a balance of over $1 million, and that same amount was in a blocked fund in Nevada, which was more than the Objectors' total claim.
On May 20, 2009, Objectors filed a memorandum of points and authorities incorporating their objections in the conservatorship case, and arguing that they had standing because they were entitled to the assets in the bank accounts and annuities "upon the death of the Conservatee, and were deprived of those assets only because the Conservator wrongfully and illegally removed those assets from the beneficiary accounts prior to the death of the Conservatee." Because the Objectors had "direct claims against the Conservatorship or Conservatorship assets (whether held in the conservatorship estate or in the probate estate of the deceased conservatee) [Objectors] are clearly 'interested persons' under Probate Code § 2622 with respect to the incomplete and deficient accounting now before this court."
At a combined hearing on May 22, 2009, the court stated that its "tentative is to overrule the objections and approve this matter." The court stated that it had read Objectors' points and authorities. Objectors' attorney stated that his clients had standing because "[i]t's impossible for them to protect their assets if they don't." The court approved the conservatorship accounting, and approved distribution to the Nevada probate estate.
On the same date, May 22, 2009, Objectors filed a petition in the probate case as interested persons under Probate Code sections 48 and 850, arguing that the transfer of the funds from the Indy Mac accounts and the annuities was a fraudulent conveyance and a wrongful taking that rendered the conservatorship estate insolvent, and sought an order returning the funds to the California probate estate.
Payne submitted a proposed order in the conservatorship case, and Objectors filed objections to the proposed order on July 14, 2009, stating: "Objectors objected to the allegations made by the conservator in the accounting and requested an evidentiary hearing (see Estate of Bennett (2008) 163 Cal.App.4th 1303, 1309-1310) to prove the falsities in the accounting and to establish damages caused by the conservator's violations of Probate Code § 2459(c), but were denied their right to an evidentiary hearing by the Court."
On March 1, 2010, the court filed an order in the conservatorship case. The order stated that after examining the petition and objections and hearing the evidence, the court found that the first and final account filed by Payne for the period ending with Tremayne's death on October 7, 2007 was approved, and Objectors "are not parties to this action and have no standing." The court ordered the objections overruled, and ordered approval of the account showing a balance of $1,310,333.49 in cash. The court also ordered the payment of Payne's attorney and the probate volunteer panel attorney, the delivery of the remaining property to the co-administrators of the probate estate in Nevada, and the discharge of Payne as conservator following receipt. Objectors filed a notice of appeal in the conservatorship case on March 8, 2010.
Graham filed a receipt on March 4, 2010.
DISCUSSION
I. The trial court properly denied Objectors an evidentiary hearing.
Objectors argue that the trial court erred in denying them an evidentiary hearing. In Estate of Bennett, supra, 163 Cal.App.4th 1303, the court noted that in probate matters affidavits and verified petitions may not be considered as evidence in a contested probate hearing, and the Probate Code "limits the use of affidavits to 'uncontested proceeding[s].' [Citation.]" (Id. at p. 1309.) If the parties do not object to the use of affidavits and both use affidavits in support of their positions, no evidentiary hearing is required. But where a party asserts in writing and at a hearing "that the factual conflicts presented by the parties' competing declarations mandated an evidentiary hearing," and where the facts are in dispute, the probate court commits reversible error in denying the request for an evidentiary hearing. (Id. at pp. 1309-1310; see Estate of Lensch (2009) 177 Cal.App.4th 667, 676-677.)
The court, however, concluded that Objectors did not have standing to object to the conservatorship accounting, and Objectors make no argument in their brief regarding why the court's conclusion that they did not have standing was in error. Instead, Objectors argue only that they should have been afforded an evidentiary hearing regarding their objections to the accounting. Objectors did request such a hearing in their objections filed on April 9, 2009, "where properly authenticated documents and live witness testimony can be offered to the Court" regarding "questionable disbursements of Conservatorship estate funds." They did not request an evidentiary hearing in their subsequent points and authorities filed May 20, 2009, in which they argued that they had standing as interested persons. At the May 22, 2009 hearing at which the court approved the account, Objectors' counsel argued "my clients absolutely have standing in this matter" and "I stand on those points and authorities." The trial court did not rule on the factual issues in the accounting raised by their objections, instead concluding that the Objectors did not have standing. Because the court concluded that the Objectors did not have standing, no evidentiary hearing was required on their specific objections to the accounting.
Objectors' opening brief states only "[t]he Order should be vacated for the reasons stated in the objections thereto," accompanied by citations to the trial record. Objectors did not file a reply brief. "It is well settled that the Court of Appeal does not permit incorporation by reference of documents filed in the trial court." (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 294, fn. 20.) We disregard the purported incorporation by reference. (Ibid.)
In their objections to the proposed order filed on July 14, 2009, Objectors state that they requested an evidentiary hearing "to prove the falsities in the accounting and to establish damages caused by the conservator's violations of Probate Code [section] 2459[, subdivision] (c) but were denied their right to an evidentiary hearing by the Court."
As Objectors never requested a hearing on the threshold issue of standing, they "cannot now criticize the trial court for ruling without consideration of extrinsic evidence or for failing to schedule an evidentiary hearing" on that issue. (Estate of Cairns (2010) 188 Cal.App.4th 937, 951.) Further, as we noted above, Objectors do not make any cognizable argument on appeal that they had standing. It is the appellant's burden to show error on appeal, and the Objectors' opening brief makes no argument and identifies no specific evidence that would compel the trial court to conclude that they had standing. (Conservatorship of Hume (2006) 140 Cal.App.4th 1385, 1393-1394.)
II. Objectors had notice that the assets were distributed to the probate estate in Nevada.
Objectors' second argument is that Payne's counsel "'slipped in'" a request for the assets to be distributed to the Nevada probate estate at the May 22, 2009 hearing, denying Objectors "[n]otice and right to be heard (due process)." Objectors point out that Payne's accounting filed February 26, 2009 stated that probate proceedings had been commenced in California, and requested that the "residue of the property on hand in the conservatorship estate . . . be distributed to the personal representative of the [e]state."
Yet on December 31, 2008, Objectors filed a creditor's claim in the Nevada probate court, and on January 16, 2009 Objectors' counsel stated: "we have information and believe that the money is all gone, anyway, and it's been moved into the State of Nevada." Payne's counsel explained that there was already a probate in Nevada and Objectors had also filed their claim there.
At the hearing on the conservatorship and probate cases on March 20, 2009, Objectors' counsel stated that whoever were the administrators of the California probate estate "need[] to make a claim to bring those assets to California," and the court rejoined "I don't think that this court has to take jurisdiction over the assets that are in Nevada." Counsel continued: "[the assets] don't even belong in Nevada because they are part of the conservatorship estate here." A discussion ensued on the way in which the funds were secured in the Nevada probate. The court expressed its opinion that it did not need to take jurisdiction over the funds to return them to the California probate estate (of which, up until the court appointed different special administrators at the time of the hearing, the Objectors had been the special administrators).
The surety's motion for bill quia timet, filed March 27, 2009, of which Objectors' counsel had notice, attached a March 2, 2009 order from the Nevada court staying estate distribution until the jurisdictional issue between Nevada and California was resolved. Objectors' counsel appeared at the hearing on April 17, 2009, at which the surety's counsel discussed the nature of the blocked account in Nevada, and the court stated that the funds had already been transferred to attorney Graham's account in Nevada.
Long before the May 22 hearing, the Objectors had notice that the funds had already been distributed to the Nevada probate estate. After the accounting was filed in February, the Objectors argued in March that the funds should be returned to the California probate estate, and the court made clear that it was disinclined to order the funds returned. Under these circumstances, we reject the Objectors' argument that they were denied notice and due process regarding the funds' distribution to the Nevada probate estate.
At oral argument, Payne's counsel conceded that there is no bar to Objectors' pursuing their interests in the Nevada court.
DISPOSITION
The order is affirmed. Each party is to bear its own costs on appeal.
NOT TO BE PUBLISHED.
JOHNSON, J. We concur:
ROTHSCHILD, Acting P. J.
CHANEY, J.