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In re Estate of Greene

May 27, 2004

IN RE: ESTATE OF JOSEPH B. GREENE, APPELLANT.


Appeal from the Superior Court of the District of Columbia (GDN 92-90) (Hon. Cheryl M. Long, Trial Judge)

Before Wagner, Chief Judge, Steadman, Associate Judge, and Ferren, Senior Judge.

The opinion of the court was delivered by: Ferren, Senior Judge

Argued December 10, 2003

This is an appeal by the ward, Joseph Greene, from the final accounting by the successor guardian of the ward's estate, Calvin Brooks. After the death of the ward's mother, his adoptive mother was appointed guardian of his estate. At a hearing on April 10, 1997, his adoptive mother was removed as guardian after complications following an automobile accident, and on June 25, 1997, the appellee, Calvin Brooks, was appointed successor guardian. The ward's adoptive mother sought reconsideration of Brooks's appointment and asked the trial court's permission for her to continue as guardian.

The court denied her requests, stating that "the removed guardian has had an extensive history of delinquency in this matter," and that "other irregularities exist regarding the omittance of assets that should have been received from the estate of the minor's mother and the payment of funds by the removed guardian to herself which have not been explained."

On September 23, 1998, the ward filed a complaint to remove the successor guardian and to have the removed former guardian, his adoptive mother, reinstated as guardian of his estate. The complaint also challenged the successor guardian's payment of federal taxes from the estate, as well as his taking of commissions from the estate without prior court approval. We agree with the ward on this last issue and conclude that the trial court must approve every commission before a guardian may take a fee from a ward's estate.

I.

Appellant contends, first, that the successor guardian had not been properly appointed because appellant - as a minor over age fourteen at the time - had a statutory right to be present in court for the appointment and was not. D.C. Code § 21-108 (a) (2001). He maintains, second, that the trial court erred in refusing to honor his statutory right, as a ward over age fourteen, to "select a new guardian." D.C. Code § 21-108 (b) (2001). As elaborated below, these contentions were not raised in the trial court, and thus, are reviewable only for a "clear miscarriage of justice apparent from the record." Williams v. Gerstenfeld, 514 A.2d 1172, 1177 (D.C. 1986) (citations omitted). We find none here.

On September 23, 1998, the ward filed in the trial court a "Verified Complaint to Remove Successor Guardian of a Minor's Estate." Thereafter, the trial court held a hearing - which it characterized as "a non-jury trial on the Complaint" - then issued an order on April 30, 1999 limited to approving disbursements and compensation. The court noted, however, "an irregularity" in the removed guardian's administration of the ward's estate and confirmed the successor guardian's "correct performance of his duty." The court deferred consideration of "contested issues regarding the Accounts and the Complaint" to a later hearing held on May 21, 1999, which the court eventually characterized as a "continuation of the hearing on the Complaint for Removal and the Objections to the First Account of Brooks, and the Request [of Brooks] for Compensation." At that hearing, however, and thereafter - perhaps because of the court's references to irregularities in the removed guardian's administration, in contrast with the court's approval of the successor guardian's actions - the ward never pressed the trial court for a ruling on his complaint for removal and, as a result, has failed to preserve the removal issue for appeal. See Carr v. United States, 585 A.2d 158, 163 n.5 (D.C. 1991); Thorne v. United States, 582 A.2d 964, 965 (D.C. 1990).

In his Complaint for Removal, moreover, the ward did not mention D.C. Code §§ 21-108 (a) and (b). Nor did the ward's supplementary trial court pleadings address them. To the contrary, in the trial court the ward directed his Complaint for Removal solely to the judge's discretion; he did not seek removal based on statutory right. For these additional reasons, therefore, the ward did not preserve for appeal the § 21-108 issues he asks us to review.

II.

Raising a third issue, the ward contends that the trial court erred in approving the guardian's request to pay a federal tax deficiency of $29,136 owed by the ward. Sometime in July 2001, the guardian received an IRS notice of deficiency for 1999 taxes. On November 15, he filed a petition for an expedited hearing, informing the court that the deficiency had been caused by the failure of the ward's mother (the prior, "removed" guardian) to disclose an additional $87,722 that should have been included in the ward's income. The guardian further informed the court that he had "been attempting to convene a meeting" with mother and son, without success; that the IRS had assessed a $4,323 penalty that he was trying to get waived; and that the IRS letter gave a January 17, 2002 deadline for filing a petition with the U.S. Tax Court to challenge the deficiency. The trial court sua sponte issued an order five days later authorizing the guardian to pay the deficiency and ordering the mother to appear in court on December 11 to show cause why judgment should not be entered against her for the value of any tax deficiency and lost assets.

Ten days after that, on November 30, counsel for the ward moved for reconsideration and a stay of the court's order on the ground that the ward appeared to have additional deductions for 1999 and that amended returns should be filed to reflect items that might reduce the deficiency. The guardian filed an opposition on December 6, informing the court that he had "put in action payment of taxes and interest," and that "a request to waive penalty" was "still pending." On December 10, counsel for the ward sought a continuance of the hearing set for the next day, noting that the ward could not be present because of college exams, alleging that the 1999 tax return had been "filed after February 22, 2000 when [the ward] turned 18 years old," and questioning the guardian's authority "to prepare and submit the tax return." The trial court went ahead with the hearing and, on December 11, reconfirmed the guardian's permission to make the tax payment, without reference to the allegation that because the ward had reached his majority the guardian had lacked power to act. Counsel for the ward again sought reconsideration, this time arguing against a lump sum deficiency payment because the ward had negotiated an installment plan for paying his tax debt that would ease the burden on his assets. The only relief requested was a court order requiring the guardian to "retrieve the $29,136.00 check from the Internal Revenue Service."

In his opposition, the guardian reconfirmed that the deficiency had been paid. On January 18, 2002, in reviewing the tax issue, the trial court faulted the ward's mother for the deficiency and suggested that the ward could challenge the assessment "through the normal IRS procedures for seeking to file one or more amended returns." Later, in the order approving the guardian's final accounting - ...


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