Kuelbs v. Hill
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Cite as 2010 Ark. App. 793
ARKANSAS COURT OF APPEALS
DIVISION II
No. CA09-931
Opinion Delivered
KRISTIN KUELBS, DONALD HILL,
AND EDWARDENA HILL
APPELLANTS
December 1, 2010
APPEAL FROM THE GARLAND
COUNTY CIRCUIT COURT,
[NO. PR-07-610-2]
V.
HONORABLE VICKI SHAW COOK,
JUDGE
KIMBERLY HILL
APPELLEE
AFFIRMED
ROBERT J. GLADWIN, Judge
This is the latest in a series of appeals involving the guardianship of Kristin Kuelbs, an
incapacitated adult.1 In this appeal, Kristin’s brother and sister-in-law, appellants Donald and
Edwardena Hill, challenge several orders entered by the Garland County Circuit Court
between March 5, 2009, and April 9, 2009, including an order that appointed Kristin’s sister,
appellee Kimberly Hill, as Kristin’s guardian. For the reasons set forth below, we affirm the
court’s orders.
I. Procedural history
1
We previously issued opinions in Kuelbs v. Hill, 2010 Ark. App. 427, ___ S.W.3d ___
(Kuelbs I) (affirming in part, dismissing in part), and Kuelbs v. Hill, 2010 Ark. App. 412 (Kuelbs
II) (ordering rebriefing and supplementation of the record).
Cite as 2010 Ark. App. 793
In 2001, Kristin Kuelbs suffered head injuries in a car accident. Several years later,
Kimberly and two other family members told a Wisconsin court that Kristin had poured hot
coffee on one of her sisters and had talked about shooting certain family members and killing
herself. A Wisconsin mental-health facility evaluated Kristin for approximately three months
and decided in early 2007 to release Kristin to Donald’s care in Hot Springs.
On November 20, 2007, Kimberly, a Minnesota resident, filed a petition in Garland
County Circuit Court seeking appointment as Kristin’s guardian. Kimberly stated that Kristin
suffered from physical and mental disabilities and lacked the capacity to care for herself.
Donald in turn sought conservatorship of Kristin and accused Kristin’s other family members
of “swindling” her assets.2 Dr. Paul Deyoub performed a court-ordered psychological
evaluation of Kristin and determined that her mental illness, which manifested in raging anger,
hostility, and the potential for physical violence, required admission to an in-patient
psychiatric facility. Dr. Deyoub also stated that Kristin needed a guardian of her person and
estate but that the guardian should not be a family member. The doctor testified to his
findings at an August 28, 2008 hearing.
On October 8, 2008, the circuit court appointed social worker Valerie Swearingen as
the guardian of Kristin’s person and First National Bank of Hot Springs as the guardian of her
estate. Thereafter, Donald, as a newly licensed attorney, appealed on behalf of himself and
Kristin, challenging the court’s guardianship ruling, the validity of Dr. Deyoub’s diagnosis,
2
Most pleadings that Donald filed were also filed on behalf of his wife, Edwardena. For
convenience, we will refer only to Donald in this opinion.
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Cite as 2010 Ark. App. 793
and several other intermediate rulings. We affirmed in part and dismissed in part in Kuelbs I,
supra.
While the appeal in Kuelbs I was pending, the circuit court continued to hold hearings
and enter orders concerning Kristin’s guardianship. In December 2008 and January 2009, the
court disqualified Donald as Kristin’s attorney;3 relieved Swearingen as the guardian of
Kristin’s person; appointed Donald as the guardian of Kristin’s person; and commanded
Donald to admit Kristin to Bridgeway within ten days for in-patient evaluation and treatment.
When Donald did not admit Kristin as directed, the court entered orders on March 6 and 9,
2009, finding that Kristin was a danger to herself or others and that law-enforcement officers
should take her into custody and transport her to Bridgeway. The officers did so on March
10, 2009. The court then entered an order on March 19, 2009, finding that Donald had failed
to comply with the court’s directives; that Donald should be removed as the guardian of
Kristin’s person; and that Kimberly should be appointed in his stead. Kimberly subsequently
moved Kristin to the Mayo Clinic in Minnesota, and the court restricted Donald’s access to
Kristin, leaving it to the Clinic’s discretion. This appeal followed.
II. Orders entered after first appeal
We first address Donald’s argument that the circuit court lacked the authority to
continue its proceedings after the appeal was filed in Kuelbs I. Donald relies on Arkansas Code
Annotated section 28-1-116 (Repl. 2004), which is a portion of our Probate Code that
3
Kristin continued to be represented by her attorney ad litem.
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Cite as 2010 Ark. App. 793
applies to guardianship cases. See Ark. Code Ann. § 28-65-103(a) (Repl. 2004). Subsection
(e)(1) of section 28-1-116 reads as follows:
An appeal shall stay other proceedings in the circuit court except when and to the
extent that the court finds that no interested person will be prejudiced and by order
permits other proceedings to be had.
Under this section, “a court may not proceed further in a probate case when an appeal has
been taken unless it makes a finding that no one will be prejudiced and by order permits
additional proceedings.” Nat’l Union Fire Ins. Co. v. Standridge, 299 Ark. 91, 92, 771 S.W.2d
22, 23 (1989) (emphasis in original).
Several proceedings in the present case occurred after March 2, 2009, the date on
which Donald filed his record with our court in Kuelbs I. Further, the circuit court conducted
those proceedings without finding that no interested person would be prejudiced thereby.
Accordingly, Donald argues, the circuit court violated section 28-1-116(e)(1), and the orders
from which he appeals, entered between March 5, 2009 and April 9, 2009, should be
vacated.4 We conclude, however, that subsection (e)(1) should not be rigidly applied to all
proceedings in this guardianship case.
First, the court’s orders required Donald to transport Kristin to Bridgeway within a
specified time period. When that did not occur, the court delegated law-enforcement officers
to pick up Kristin and take her to Bridgeway, and the court removed Donald as guardian
4
Donald’s precise argument is that the circuit court lost jurisdiction once he filed his
notice of appeal in Kuelbs I in October 2008. But a trial court retains jurisdiction until the
record is lodged on appeal. Alexander v. First Nat’l Bank of Ft. Smith, 278 Ark. 406, 646
S.W.2d 684 (1983).
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Cite as 2010 Ark. App. 793
based on his violation of the court’s orders. The circuit judge was therefore grappling with
a situation in which the terms of her orders had not been fulfilled. A circuit court has the
authority to enforce its prior orders. See Stilley v. Ft. Smith Sch. Dist., 367 Ark. 193, 238
S.W.3d 902 (2006). Thus, subsection (e)(1) should not be read to preclude a circuit court
from exercising this kind of judicial authority.
Secondly, our courts have crafted an exception to the rule that a circuit court loses
jurisdiction to act once the record is lodged on appeal. In child-custody and child-support
cases, the circuit court retains jurisdiction to modify prior orders. See Slaton v. Slaton, 330 Ark.
287, 956 S.W.2d 150 (1997). By analogy, a guardianship case, like a child-custody or childsupport case, involves ongoing events in the life of a person who is dependent on the court
for protection. The court must continually exercise its powers, where changed conditions
warrant, to safeguard those persons whose needs cannot wait a year or more while an appeal
makes its way through the courts. In the case at bar, the circuit court faced changed
circumstances that called for immediate action, despite the pendency of the appeal. Donald
had not admitted Kristin to Bridgeway within ten days as instructed, and Kristin remained
without treatment for more than two months after entry of the court’s orders. The court held
hearings on March 5 and 6, 2009, and discovered that Donald had left Kristin alone at his
house while he and his wife were on a three-week cruise. Recalling Dr. Deyoub’s diagnosis
of Kristin and his strong recommendations for her evaluation and treatment, the court found
that Kristin was a danger to herself or others and must be transported to Bridgeway.
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Cite as 2010 Ark. App. 793
Thereafter, the court filed the necessary orders to remove the noncompliant guardian, restrict
his access to his former ward, and appoint a new guardian. Given the circumstances in this
case, we hold that the circuit court acted within its authority.
III. Court’s “assumption” of Kristin’s incompetence
Donald argues under this heading that, at no time prior to March 19, 2009, did the
court declare Kristin legally incompetent. Rather, he says, the court simply assumed that she
was incompetent and erroneously referred to her as incompetent in several prior orders.
Donald does not, however, direct us to the particular orders in which this occurred. Further,
he cites no authority and makes no convincing argument on this point. We do not address
arguments that are not supported by convincing argument or authority. Foster v. Foster, 2010
Ark. App. 594, ___ S.W.3d ___. In any event, we cannot say that the circuit court merely
“assumed” that Kristin was incompetent, given Dr. Deyoub’s testimony that Kristin was not
competent due to mental illness.
IV. Appointment of Kimberly Hill as guardian
Donald argues that the circuit court committed several errors in appointing Kimberly
Hill as Kristin’s guardian. First, he contends that Kimberly had a conflict of interest with
Kristin because Kristin had sued Kimberly in United States District Court for outrage, abuse
of process, fraud, and other causes of action. The federal court ruled, however, that Kristin
was not a real party in interest to the lawsuit and dismissed the case. Kuelbs v. Hill, 2009 WL
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Cite as 2010 Ark. App. 793
1706909 (W.D. Ark. 2009). The Eighth Circuit affirmed that ruling on appeal. Kuelbs v. Hill,
615 F.3d 1037 (8th Cir. 2010).5
Donald additionally points out that Dr. Deyoub’s report rejected Kimberly as a
candidate for guardianship. In fact, Dr. Deyoub recommended that no family member be
appointed as Kristin’s guardian. But, when the court was forced to relieve the independent
third party initially appointed as guardian due to Kristin’s lack of cooperation, the court
appointed Donald and, after removing him, appointed Kimberly. Given this sequence of
events, we cannot say that the court erred in appointing Kimberly after attempting other
alternatives.
Donald also argues that the circuit court should have held a hearing to determine
Kimberly’s qualifications as a guardian and should have made specific factual findings
regarding her suitability. He relies on Arkansas Code Annotated section 28-65-203 (Repl.
2004), which sets forth the qualifications for a guardian; but, nothing in that statute mandates
a hearing or specific factual findings on the question of a guardian’s ability to serve. Nor are
such requirements set forth in Arkansas Code Annotated section 28-65-210 (Repl. 2004),
which provides that the circuit court must be “satisfied” that the person to be appointed
guardian is qualified and suitable. Moreover, the record as abstracted does not indicate that
5
Donald also claims that Ark. Code Ann. § 28-65-203(i) (Repl. 2004), required the
circuit court to find that any potential conflict of interest between Kimberly and Kristin was
“insubstantial.” That statute applies only to the appointment of a temporary guardian.
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Cite as 2010 Ark. App. 793
the circuit court ever refused any request by Donald to hold an evidentiary hearing or issue
findings of fact on this matter. We therefore see no basis for reversal.
Next, Donald contends that the circuit court erroneously committed Kristin to
Bridgeway without evidence that she was a danger to herself or others, as required by
Arkansas Code Annotated section 20-47-214(b)(2) (Supp. 2009). Donald raises this argument
for the first time on appeal. Therefore, we will not consider it. See Campbell v. State, 311 Ark.
641, 846 S.W.2d 639 (1993) (refusing to consider an argument raised for the first time on
appeal in an involuntary-commitment case). Donald also claims that Kristin should have
received statutory notice, pursuant to Arkansas Code Annotated section 20-47-211 (Repl.
2001), that she had a right to effective assistance of counsel; to be present at hearings and other
significant stages of the proceedings; to present evidence and cross-examine witnesses; to
remain silent; and to review all petitions, reports, and documents in the court file. This
argument is also barred because it was not raised in the circuit court. Campbell, supra. We do
note, however, that Kristin was represented by her attorney ad litem at the March 2009
hearings.
Finally, we address Donald’s assertion that the circuit court refused to allow him to
take Kimberly’s deposition. We disposed of that argument in Kuelbs I, ruling that the court’s
order prohibiting Kimberly’s deposition on April 14, 2008, did not deprive Donald of the
opportunity to take the deposition at a later date.
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Cite as 2010 Ark. App. 793
V. Due process
Donald asserts that he was deprived of due process of law because the circuit court was
biased against him and should have recused. We held in Kuelbs I that the circuit judge
demonstrated no bias and acted thoughtfully and respectfully during the proceedings. We see
no evidence in this record that the court acted otherwise in its subsequent rulings. The court’s
adverse rulings against Donald are not grounds for recusal. See Turner v. Nw. Ark. Neurosurgery
Clinic, 91 Ark. App. 290, 210 S.W.3d 126 (2005).
Donald also appears to argue that the circuit court held the March 2009 hearings
without notice to him and without his presence. Both Donald and Kristin, however, were
represented by counsel at the hearings, and counsel made no motion for a continuance or
objection to Donald’s or Kristin’s lack of attendance.
VI. Remaining arguments
Donald’s remaining arguments, which are scattered throughout his brief, involve
matters that are either unsupported by sufficient argument or authority; were resolved in
Kuelbs I; or are outside the record in this or prior appeals. We therefore affirm those
arguments summarily.
VII. Kimberly’s motion for sanctions
Kimberly asks us to award sanctions on the ground that Donald’s appeal is frivolous.
We denied her motion for dismissal and sanctions on September 1, 2010, and decline to revisit our ruling.
Affirmed.
V AUGHT, C.J., and H ENRY, J., agree.
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