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In the Matter of the Estate of Ralph Bartelson, Deceased v. Neil

November 15, 2011

IN THE MATTER OF THE ESTATE OF RALPH BARTELSON, DECEASED JEAN VALER AND JANE HAUGHT, PETITIONERS AND APPELLEES
v.
NEIL BARTELSON AND DIANE FISCHER AND GUARDIAN AND PROTECTIVE SERVICES, PERSONAL REPRESENTATIVE, RESPONDENTS NEIL BARTELSON AND DIANE FISCHER, APPELLANTS



Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Donald L. Jorgensen, Judge.

The opinion of the court was delivered by: Kapsner, Justice.

N.D. Supreme CourtEstate of Bartelson, 2011 ND 219

This opinion is subject to petition for rehearing. [Go to Documents]

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REVERSED AND REMANDED.

Opinion of the Court by Kapsner, Justice.

[¶1] Neil Bartelson and Diane Fischer appeal from a district court order that concluded the court did not have jurisdiction to decide whether funds expended prior to the appointment of a guardian and conservator were misappropriated. We conclude the court erred in determining it did not have jurisdiction over the misappropriation claim, and we reverse and remand for further proceedings.

I

[¶2] Ralph Bartelson had four children--Jean Valer, Jane Haught, Neil Bartelson, and Diane Fischer. The children agreed that Ralph Bartelson would move into Valer's home and that Valer would be paid for her services to him. While living with Valer, Ralph Bartelson established a joint checking account, naming both Valer and Haught co-owners with rights of survivorship and allowing them to issue checks from the account. Neil Bartelson and Fischer alleged that Valer and Haught made inappropriate withdrawals from Ralph Bartelson's account, and Neil Bartelson petitioned for the appointment of a guardian and conservator for Ralph Bartelson. On July 8, 2008, the parties entered into a settlement agreement that was approved by the court. Under the agreement, Valer was appointed guardian of Ralph Bartelson, and Guardian and Protective Services, Inc. ("GAPS") was appointed conservator. The agreement also provided:

[T]he conservator . . . will be empowered to investigate and pursue any inappropriate expenditures from the ward's funds if the conservator deems it appropriate so to do. . . . [T]ransfers Ralph made to Jean Valer, Jane Haught and Diane Fischer in December of 2007 of $12,000 and in January of 2008 of $60,000 will not be contested but all other transfers are subject to review by the conservator.

[¶3] Ralph Bartelson died on August 23, 2008, and his will was admitted to informal probate. Valer and Haught were initially appointed as co-personal representatives of Ralph Bartelson's estate, but Neil Bartelson and Fischer later requested the appointment of an alternative representative. On March 26, 2009, the parties entered into a stipulation, agreeing that GAPS would be substituted as the personal representative of the estate and petitioning the court for formal probate. The next day, the court filed an order consistent with the parties' stipulation, placing the probate proceedings in formal status.

[¶4] GAPS subsequently filed a motion for court approval of compensation to Valer for residential damages incurred while caring for Ralph Bartelson. GAPS also sought court approval of payments to Valer and Haught for their time and costs while acting as personal representatives of Ralph Bartelson's estate. Neil Bartelson and Fischer objected to the expenditures requested and maintained their allegation that Valer and Haught had misappropriated Ralph Bartelson's funds. On March 29, 2010, the parties filed a stipulation that provided for payment of the expenditures requested in GAPS's motion, but conditioned the payments upon the parties reaching a settlement agreement or abiding by a court judgment on the misappropriation of funds issue, among others. The March 29, 2010, stipulation also stated, "The parties agree to cooperate with [GAPS] in the preparation of an inventory and accounting of assets, income, withdrawals and deposits and agree that G[A]PS may retain the services of a CPA or forensic accountant to assist it in analyzing the claims."

[¶5] GAPS then retained Terry Daffinrud, a CPA with forensic accounting experience, to review transfers of Ralph Bartelson's assets to his family members. While Daffinrud was able to provide a summary of funds expended from Ralph Bartelson's estate and a list of amounts received by various family members, Daffinrud was unable to determine, because of a lack of documentation, the reason the family members received these amounts. After Daffinrud's review, GAPS did not pursue a misappropriation claim against Valer and Haught.

[ΒΆ6] The parties remained unable to reach a settlement agreement, and a bench trial was held. Following trial, the court issued an order stating it did not have jurisdiction over claims of misappropriation that occurred prior to July 8, 2008, when ...


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